CASES

IN THE

SUPREME COURT

OF

ALABAMA.

VERBERG v. STATE.

[137 Ala. 73, 34 South. 848.]

LARCENY.—An Indictment for larceny charging that the aceused "feloniously took and carried away a certain sum of "money of the United States, the further description of which is to the grand jury unknown, the personal property of" a person named, is sufficient and not open to demurrer. (p. 18.)

LARCENY Changing Money.-If a person takes a piece of money from another to change and places it in his own pocket with the unlawful intent to convert it, or any part of it, to his own use, and refuses to deliver the money given him, or the change therefor, on demand, he is guilty of larceny, and the fact that the taking was open and from the owner is of no consequence, if the intent to steal existed. (p. 18.)

LARCENY--Intent Question for Jury.-Under an indictment for larceny, the question of the intent with which the accused took the property is for the jury, although the taking was in the presence of the owners. (p. 18.)

INDICTMENT-Waiver of Misnomer.-A plea of not guilty to an indictment is an admission that the name by which the accused is indicted is his true name and a waiver of the fact that it is a mis. (p. 19.)

nomer.

CRIMINAL LAW-Misnomer.-The refusal of a court to allow an accused to withdraw his plea of not guilty and to file a plea of misnomer is matter resting in the discretion of the court, and is not revisable on appeal. (p. 19.)

TRIAL Instructions.-A request to give written charges to the jury as an entirety is properly refused, if any of them is improper. (p. 19.)

T. Richardson, for the appellant.

M. Wilson, attorney general, for the state.

Am. St. Rep., Vol. 97-2 (17)

77 TYSON, J. The judgment entry shows that a demurTer to the indictment was overruled. No demurrer appears in the record, however. We cannot, therefore, know what the specific objection to the indictment was if one was made. But whatever it may have been, it would be without avail, since its allegations are clearly sufficient and not subject to any ground of attack by demurrer: Code, sec. 4905; Leonard v. State, 115 Ala. 80, 22 South. 564; James v. State, 115 Ala. 83, 22 South. 565; Owens v. State, 104 Ala. 18, 16 South. 575; Burney v. State, 87 Ala. 80, 6 South. 391; Grant v. State, 55 Ala. 201.

The evidence tended to show that defendant requested Bell, from whom it is alleged he stole the money, to give him a five dollar bill for coin. After the exchange was made, defendant said to Bell: "I think I owe you more, let me count the money over again." Thereupon Bell handed him back the coins to recount. Defendant then ran his hand, in which he had the coins, into his pocket, and upon drawing them out added ten cents to the amount. He then placed the coins in the hand of Bell who put them into his pocket without counting them or summing up their value. Shortly afterward, Bell discovered that defendant had returned to him only two dollars and fifty cents in silver coin, and had retained the sum of two dollars and fifty cents of the total amount he had handed him to recount. It is undoubtedly the law that if the defendant had the intention to appropriate to his own use any part of the money handed back to him to be recounted by him and kept it, he was guilty of larceny: Levy v. State, 79 Ala. 259; Eggleston v. State, 129 Ala. 83, 87 Am. St. Rep. 17, 30 South. 582. The fact that the taking was open and from the owner is of no consequence if the intent to steal existed. And whether or not he had such intent was a question for the jury: Talbert v. State, 121 Ala. 33, 25 South. 690.

At the close of the evidence offered in behalf of the prosecution, the defendant moved the court to exclude it. The motion contained a number of grounds. The only one insisted upon here is that there was a variance between the allegations and the proof. This contention is based upon the theory that the evidence shows that 78 the grand jury knew, at the time they found the indictment, the discription of the money charged to have been stolen, while the indictment alleges that it was unknown to them. While it is true the evidence shows that Bell informed the grand jury that defendant had stolen silver coins from him of the value of two dollars and fifty cents, it does not

show that he informed them of the number and the denomination of each. Indeed, it is not shown that the witness ever knew, if this were important, the exact number of coins retained by defendant and the denomination of each. All that he did know was, that it was silver money in small coin. From this statement it is manifest no variance is shown. There is clearly no merit in the other grounds of the motion.

The evidence introduced by defendant, which was rebutted by the state, tending to show that his name is Viberg, instead of the one by which he is indicted, was wholly impertinent to the issue in the case. His plea of not guilty was an admission that the name by which he was indicted was his true name and a waiver of the misnomer. Had this evidence remained in, it could have availed him nothing. There was, therefore, no error in excluding it: Wells v. State, 88 Ala. 239, 7 South. 272. The other exceptions reserved to the admission of evidence are unmeritorious. The refusal of the court to allow defendant to withdraw his plea of not guilty and to file a plea of misnomer was matter resting in its discretion and is not revisable: Hubbard v. State, 72 Ala. 164.

The defendant's request of the court to give the several written charges must be construed as a request to give them in their entirety. So construing it, if any one of the charges was improper, there was no error in refusing all of them: Rarden v. Cunningham, 136 Ala. 263, 34 South. 26. Among them was the affirmative charge, which, of course, could not have been given.

Affirmed.

That Larceny may be committed by converting money delivered to another for the purpose of having it changed, see the monographic note to People v. Miller, 88 Am. St. Rep. 578, 579.

UNITED STATES SAVINGS AND LOAN COMPANY v.

BECKLEY.

[137 Ala. 119, 33 South. 934.]

USURY-Conflict of Laws.-If a contract is made in one state to be performed in another, the parties may contract for the highest rate of interest allowed by either state without offending against the usury laws of the other, unless this is done as a subterfuge and device to evade usury laws. (p. 20.)

USURY-Conflict of Laws.-If a contract is not usurious in the state where it is made and is to be performed, it will be enforced in another state notwithstanding it would have offended against the usury laws of that state had it been made there. (p. 21.)

CONFLICT OF LAWS.-The place where a contract is delivered or first becomes a binding obligation, is deemed the place of the contract for the purpose of designating what law governs. (p. 22.)

USURY-Conflict of Laws Mortgage to Secure Loan.—The taking of a mortgage on lands in one state to secure the payment of money borrowed in another does not change the rule in respect to the laws of the place which are to govern the transaction as to usury. This is governed by the laws of the state where the money is borrowed. (p. 22.)

USURY-Conflict of Laws.-Mortgages on land in one state made to a corporation organized and acting in another state in the usual and customary form adopted by such corporation in doing like business, legal in its home state, and containing a stipulation that they are to be governed by the laws of that state, are not mere devices to evade the usury laws of the other state, or made for that purpose, though opposed thereto. (p. 22.)

White & Howze, for the appellant.

S. W. John, for the appellee.

121 TYSON, J. The issue presented by the pleadings in this cause is, whether the note and mortgage executed by complainant to the respondent is an Alabama or a Minnesota contract. It is not contended in argument by complainant that the mortgage is usurious if it is a Minnesota 122 contract, nor is it insisted by respondent that it is not usurious if it is an Alabama contract.

It is undoubtedly the law as said in Pioneer Sav, etc. Co. v. Nonnemacher, 127 Ala. 545, 30 South. 87, "that where a contract is made in one state to be performed in another state, the parties may contract for the payment of the highest rate of interest allowed by either state without offending against the usury laws of the other; the exception to the rule being that this may not be done as a subterfuge and device and where the purpose and intention of the parties is simply to evade the usury laws." Or to state the proposition in the form in which it is stated in Hayes v. Southern Home etc. Assn., 124 Ala. 669, 82 Am. St. Rep. 216, 26 South. 530: "Under established rules, a note or bond made payable at a particular place or which is expressly made with reference to the laws of a particular state is governed in respect to its obligation as to interest by the law of the place so stipulated as the place of performance. . . . An exception to these rules is where such stipulations are found to