(dissenting).
The writer is impressed with the fact that this is a case originating from a domestic “squabble and fuss” between a husband and wife. The appellant is charged with grand larceny, an offense the commission of which requires a felonious intent to take and “carry away”, which, in my opinion, under the evidence was not here proven. A perusal of the evidence in this case reveals an offer or attempt by appellant to prove the arrangements for and/or furnishing, substituting and exchanging of automobiles for the use and transportation of his wife and children over a period of years. Numerous attempts by appellant to establish by evidence the existence of this arrangement were, in the opinion of the writer, erroneously excluded by the trial court from admission into evidence. Such should have been admitted as evidence intending to show appellant’s intent. The law, couched in its majesty,' ne’er demands the impairment of joint parental suspension so indispensably essential in a home charged with the saci’ed responsibility of rearing four children by alienating the father therefrom because of long existing strife and contention, and perhaps hate, existing between the parents.
My colleagues are inclined to follow the court’s ruling that the alleged “bill of sale” was not, as stated below, subject to contradiction or a variance of terms by parol evidence. I feel, however, that this alleged “bill” is the crux of this case.
I agree with appellant’s contention that whether or not the instrument in question (State’s Exhibit 1) was a bill of sale or not was a “question for the jury to determine”, and that the court prejudiced appellant in the eyes of the jury in stating, in the presence of the jury, “I think that the bill of sale speaks for itself and cannot be varied by a parol evidence. Thafs the opinion of this court” (Emphasis ours.)
In my opinion the foregoing was error. The record reveals that this alleged bill was not actually signed by any of the parties thereto, but by Charlene Calhoun, office assistant by appellant’s instructions, and the evidence shows that appellant cannot read or write; that on the alleged bill, Mrs. Benefield is listed at the top of the space max-ked “sold to”, but at the bottom of the bill, in that space normally reserved for the signature of the buyer, the names “Robert Benefield” and “Marcille Benefield” appear by the words “Buyer”, with Robert’s name appearing first.
Some of the testimony also tends to show that this automobile was, in fact, not the property of Mrs. Benefield, but of the Bank of Wadley; that the bank had obtained some’ interest in this automobile when it financed a mortgage loan thereto to Robert Benefield, the same party who allegedly signed the alleged bill of sale in question; that this automobile had been repossessed and was taken by appellant to his car lot at the request of axxd as the “agent” of the bank; and that appellant had no authority to sell the same to anyone without the permission of the bank and that appellant had not sought such permission.
The “bill of sale” was so ambiguous in its terms that it is questionable and not *345clear as to who the actual owner of the automobile was. Because of this, parol evidence should have been allowed into evidence by the trial court to clarify this instrument.
“Where the terms of a written instrument are contradictory, ambiguous, or inharmonious, extraneous evidence is admissible to aid the court in arriving at the true intent of the parties as it is expressed in the words they used.” John Hancock Mutual Life Insurance Co. v. Welsh, 267 F.2d 152 (C.C.A. 5th Cir., Ala.)
The case of Coley v. W. P. Brown & Sons Lumber Co., 251 Ala. 235, 37 So.2d 125, states in part as follows:
“ ‘ “It is only by the aid of parol evidence that courts can be certain what were the circumstances under which a contract was made; what was the relation of the parties, and what was within their mutual knowledge. * * * The evidence simply helps to a proper understanding of the words and stipulations of the writing.” McGhee et al. v. Alexander, 104 Ala. 116, 121, 122, 16 So. 148, 149.’ Olsson et al. v. Nelson, 248 Ala. 441, 445, 446, 28 So.2d 186, 189.”
The case of McClendon v. Eubanks, 249 Ala. 170, 30 So.2d 261, states in part that “if the language of the contract is not plain and unambiguous, then parol evidence is admissible to aid in interpretation of the contract”.
Thus, the “opinion” voiced by the trial judge was not only improper but might have prejudiced appellant’s rights in the eyes of the jury. This ruling in effect took away from the jury the right to decide if the “bill of sale” was such and instead positively informed the jury that it zvas a bill of sale. If this ruling by the court might have prejudiced the minds of the jury as to materially injure appellant, reversible error was committed. Dennison v. State, 17 Ala.App. 674, 88 So. 211; Williams v. State, 34 Ala.App. 253, 39 So.2d 29; Neal v. State, 36 Ala. App. 156, 54 So.2d 613; Nix v. State, 40 Ala.App. 357, 114 So.2d 286; Gray v. State, 44 Ala.App. 12, 200 So.2d 514.
The divorce decree with its alimony provision was never offered in evidence. The basis of this dispute about the automobile in question stemmed from the provisions of this decree. In my opinion, the proper evidence under the Best Evidence Rule of proof of the terms of the marital dissolution, including alimony, would be this decree of the court, the lack of which, or showing thereof, made the propriety of the secondary evidence questionable.
In addition to proof of the legal requisite of felonious intent the law in the crime here alleged also demands proof of the asportation of the property in question. Proof of asportation is usually shown by proof of the selling, concealing, changing the identity or other larcenous and felonious acts by the accused. As a contrast, in the case before us we can observe naught save acts of conduct of good faith on the part of this appellant.
Under the undisputed testimony of both the President of the Bank of Wadley and of the appellant, appellant carried the automobile, as instructed by the bank and in the presence of a third party, to his used car lot for resale. Said automobile had been repossessed by the bank from Robert Benefield, a cousin of appellant. Insofar as the record reflects the same remained on this lot for many weeks in daily view of the transient and observing public.
Basically, we understand this to be most of the evidence and we reiterate that such does not constitute the offense of grand larceny by appellant.
In conclusion, I feel that the trial court erred in failing to grant appellant’s motion to set aside the verdict and sentence because such was contrary to the law and evidence.
*346For the foregoing reasons, I feel that this cause is due to be reversed and remanded and must respectfully dissent from the majority opinion.