The opinion
CATES, Judge
(concurring in the result) .
I consider that my brother, TYSON, has reached the correct result.
I agree with Parts II and III of his opinion. However, there are several points of law with which I cannot agree:
1. Clearly I think that the owner, Anders, gave his consent for Hill to take the car. Nor did the State offer any proof of Hill’s contemporaneous intent to asport the car. Coates v. State, 36 Ala.App. 371 , 56 So.2d 383 , says:
“Since larceny is a criminal trespass on the right of possession, it is necessary that the taking should be without the consent of the possessor. The burden of proof of this essential element of the offense is on the prosecution.”
The most that is shown by Ander’s testimony is that Hill (if the car suited him after the indeterminate trial period) promised to pay Anders $50.
2. Constitution, 1901, § 20 reads:
“That no person shall be imprisoned for debt.”
See Carr v. State, 106 Ala. 35 , 17 So. 350 . Of that case we find in Davis v. State, 237 Ala. 143 , 185 So. 774 , the following :
“The case is clear authority to the effect that in Alabama non-performance of the obligations of a contract cannot be made a crime because fraud entered into its procurement. If the party defrauded stands on his contract, the criminal law cannot be used to enforce its obligation.
Fraud and misrepresentation resulting in injury to another may be made criminal; and it matters not that such fraud was perpetrated in the procurement of a contract under which the party injured parted with value. But crime cannot- be imputed to the breach of contract, nonperformance, or non-payment, as the case may be. The crime must be predicated on the tortious act, not on failure to perform the contract, although induced by fraud.”
To me under the record here Anders sold the car when the “try-out” period ran out. Based on the earlier transaction we might guess that one week was set up by the conduct of the parties as a reasonable “try-out” time. At the end of that time, whatever its span, Hill then owed $50 to Anders.
Without proof of fraud to make a sham of Hill’s purchase, I see no larceny.
3. Since the State’s evidence made out a sale of the car to Hill, I perceive no element which would have supported embezzlement by Hill. See Benefield v. State, 286 Ala. 722 , 246 So.2d 483 . Therefore, the validity vel non of the indictment is immaterial except propter aliud examen. The motion to exclude should have been granted as to all counts in the indictment.
I agree that some employment or agency must be averred in the absence of a code form indictment for embezzlement.
For the foregoing reasons I vote to reverse because I think that the trial judge should have granted the motion to exclude the evidence. •