Reed v. State , 248 Ala. 196 ( 1946 )

Where the matter involves no question of law but only one of fact, defendant cannot prove that he acted under legal advice, especially when it does not appear that he truthfully stated the facts to the attorney. Barnett v. State, 89 Ala. 165,7 So. 414; 133 A.L.R. 1060; Williamson v. U.S., 207 U.S. 425,28 S.Ct. 163, 52 L.Ed. 278.

In this case the disputed question was only one of fact, whether defendant had sold the corn to Mr. Forehand. If he had done so, he had actual knowledge that he did not own it, and he asserts no other claim to it and could not therefore move it away when he left the premises. Under such circumstances his taking the corn with the intent to deprive Mr. Forehand of it, when he had no claim to it, was felonious in law, and the court could and probably did so charge the jury. On the other hand if he did not sell the corn to Mr. Forehand he owned it and his taking it could not have been felonious. Morningstar v. State,55 Ala. 148; Bonham v. State, 65 Ala. 456; Morrisette v. State,77 Ala. 71; Black v. State, 83 Ala. 81, 3 So. 814, 3 Am.St.Rep. 691; Barnes v. State, 103 Ala. 44, 15 So. 901.

The opinion of the Court of Appeals does not show what he proposed to prove that he told the attorney. But he must have told him either that he had sold the corn, or that he had not sold it, and that it was still his. If he told the attorney that he had sold it and had no other claim to it he knew that as a matter of right he had no authority to move it on plain and clear principles of law, of which he cannot claim ignorance; there would be no question of law involved. If under those facts his right to the corn and to move it although he had sold it was doubtful and uncertain, advice of counsel might be helpful and competent evidence. But under those circumstances it cannot be presumed that he did not know that he could not take it so as to deprive the owner of it.

But he may have told the attorney that he owned the corn. That was in itself a complete defense if true, and doubtless the court so charged the jury, and advice of counsel to the effect that in that event he could move the corn would not aid the defense. If the corn was his own, its removal was not felonious as a matter of law and the defendant was in that event due to be acquitted. Advice of counsel would have added in that event nothing to his right to an acquittal.

If the legal nature of defendant's claim be uncertain upon a true statement of the facts, legal advice is relevant on the question of motive or intent, as in the Krasner case, Ala.Sup.,26 So.2d 526.¹ There is then a question of law involved. Or if his right to move the corn is not clear and he states the true situation to counsel, his advice would be competent when the exercise of that right is claimed to be felonious.

But the facts stated to counsel are either true or they are not true. When if true those facts constitute a complete defense, and ipso facto disprove the felonious intent, the advice of counsel would be pro forma and immaterial. If they are not true, then advice of counsel based on a false statement of facts cannot serve a useful purpose.

BROWN, J., concurring.

¹ Ante, p. 12.