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Fitch v. State8/31/2001
oan and therefore could not be guilty of obtaining direct financial gain by Bubba's payment toward paying off the renewed loan.
According to Fitch, no evidence was presented at trial indicating that Fitch owned the tractor; thus, he says, there was no evidence that Fitch derived financial gain by Bubba's loan payment. The evidence, according to Fitch, was that Bubba had obtained the loan, and, moreover, that Bubba owned the tractor; thus, Fitch had obtained no direct financial gain from the loan payment. The question is not one of "ownership" as argued by Fitch, but rather indebtedness -- who was legally obligated to repay the bank loan? Thus, the dispositive question becomes whether Fitch, who cosigned on Bubba's original loan, remained liable to the bank after the loan was renewed by Bubba.
Tom Clemmons, vice president and loan officer at First National Bank of Central Alabama, Carrollton office, testified on cross-examination that the proceeds from the second loan, loan 332511, in addition to Bubba's payroll checks from Livingston Stockyard ($692.30) and Justles Oil Company ($275.95) were used to pay off the original note, note 331881. The inference to be derived from this testimony is that the original loan, loan 331881, was paid in full, and that Fitch's liability under loan 331881 terminated. However, Clemmons testified on redirect examination by the State that the original loan, number 331881 was never "closed." According to Clemmons, the renewal did not terminate Fitch's responsibility under the original loan. Clemmons testified:
"When someone signs a note and is obligated on that note, until it's paid off, even though it's renewed, or renewed by somebody else ... it's ... within the legal discretion of the bank to go after whoever signed the first note." R. 662.
"Whether the execution of a note is a renewal of or payment for a previous note is a matter of the intention of the parties." First State Bank of Franklin County v. Ford, 484 So. 2d 407, 409 (Ala. 1986), citing Martin v. First National Bank of Opelika, 279 Ala. 303, 310, 184 So. 2d 815, 821 (1966). On its face the second loan, loan 332511, states in two places that it is a renewal of the first loan, loan 331881. "Loan Number 332511 ... Renewal of 331881." State's Exhibit 69. "The Purpose Of This Loan is Consumer: Renewal (Purchase Equipment)." State's Exhibit 69. Because the evidence indicates that the second loan was intended by the parties to be a renewal of the first loan, Fitch remained liable to the bank for payment of the second loan obtained by Bubba, even though Fitch did not execute a form indicating he was cosigning for the loan. Thus, there was sufficient evidence from which the jury could find Fitch guilty of realizing direct financial gain from his position as a county commissioner.
VII.
Fitch contends that there was insufficient evidence to prove that he obtained "public funds." Fitch was charged with obtaining "public funds" in Counts one, two, and four of case no. CC-97-0282; Counts two, three, and four of case no. CC-97-0155; and Count one of case no. CC-97-0164. According to Fitch, once the State charged him with obtaining "public funds," it was required to prove its charge. Fitch asserts that whether he allegedly obtained "public funds" is a question of first impression in Alabama. Fitch argues that the State never proved that he obtained "public funds." Fitch also contends that this constitutes a fatal variance between the allegation in the indictment and the proof at trial. He compared the situation to reversals in situations where a defendant is indicted for theft of a check but the proof at trial is theft of money, and notes that we have reversed convic
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