Bell v. State

• Decision Date: 03 October 1978
• Docket Number: 7 Div. 604
• Citation: 364 So.2d 420
• Parties: Diane BELL, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 420

364 So.2d 420

Diane BELL, alias v. STATE.

7 Div. 604.

Court of Criminal Appeals of Alabama.

Oct. 3, 1978.

Rehearing Denied Oct. 31, 1978.

Myron K. Allenstein, Gadsden, for appellant.

William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

The Grand Jury of Etowah County, Alabama returned the following indictment against appellant in September of 1977:

"The Grand Jury of said County charges that before the finding of this Indictment Diane Bell, alias Dianne Bell, alias Diane Dale, whose name to the Grand Jury is otherwise unknown than as stated, feloniously took and carried away one (1) pink slip, of the value of $10.00, the personal property of Ricky Hagedorn, contrary to law and against the peace and dignity of the State of Alabama."

Appellant was subsequently arraigned in the presence of counsel, at which time she entered a plea of not guilty. Upon a trial by jury, appellant was found guilty, the jury assessing a fine of four hundred dollars. The trial court adjudged appellant guilty, imposing the fine as set by the jury and adding twelve months imprisonment in the county jail. Nine months of this jail time was suspended.

After sentence was imposed appellant gave notice of appeal. Having been found indigent, appellant was provided a free transcript and trial counsel was appointed to represent her on appeal.

This case arose from an incident at Hagedorn's, a clothing store, in the Gadsden Mall in Etowah County. On February 4, 1977, Richard Hagedorn, the manager of the store, saw two women, one of whom he identified as the appellant, "fooling around" with some merchandise at a rack of lingerie. When the two women left the store, Hagedorn saw that two of the clothes hangers on the rack were empty.

Hagedorn and a salesperson named Valerie Mims followed the women out into the mall parking lot where Hagedorn flagged down a policeman. Two to three yards from the spot where appellant was apprehended, Hagedorn saw several items of clothing on the ground, among them a pink slip marked with a "Hagedorn's" tag. Although the tags of items purchased in the store are torn in half at the time of purchase, Hagedorn testified, the tag on the slip was intact. As the manager of the store, Hagedorn was familiar with the value of the slip, testifying that it cost $10.00.

Valerie Mims testified that she was employed at Hagedorn's on the day in question. That afternoon Ms. Mims observed three women come into the store, two of them carrying large handbags. One of the two carrying a handbag was identified by Ms. Mims as the defendant. While watching the women standing behind a rack of lingerie, Ms. Mims saw a pair of hands remove a pink gown from the rack and place it into a handbag. Ms. Mims further testified that she and Hagedorn followed the women out into the mall parking lot. The rest of the witness's testimony corresponds with that of Hagedorn. However, Ms. Mims did see appellant throw the gown out in the parking lot.

Lieutenant Morris Alexander testified that he recovered the pink slip and other items in the mall parking lot near appellant. He turned the slip over to Sergeant David Gartman.

Sergeant David Gartman testified that he recovered a pink slip from Lieutenant Alexander in the mall parking lot, subsequently returning the slip to Hagedorn's. Gartman further testified that appellant was one of two females that had been taken into custody by Officer Alexander at the scene.

Appellant denied any involvement in the theft of the slip.

Appellant first contends that the trial court erred to reversal by allowing testimony by witnesses that they observed a Hagedorn's tag on the slip found in the parking lot. It was shown by the testimony that, when a sale is made, the price tag is torn in half. The tag on the slip was not torn, showing that the slip had not been sold in the store. Although the slip was recovered and returned to the store, it was not produced at trial. Appellant argues that the testimony concerning the merchandise tag violated the best evidence rule.

We do not agree. The best evidence rule applies when the party wishes to prove the terms of a writing. In that situation, the original is deemed to be the "best evidence" of its terms. Gamble, McElroy's Alabama Evidence, 3rd Ed., Section 212.01. However, it is well established that the rule does include chattels. Dunaway v. State, 50 Ala.App. 198, 278 So.2d 198, cert. denied, 291 Ala. 777, 278 So.2d 200.

It would appear that chattels which bear an inscription might fall within the best evidence rule; but the Alabama cases have not so held. Benjamin v. State, 12 Ala.App. 148, 67 So. 792, held that the rule does not apply to: directions on a parcel; words written on a valise; and labels attached to jugs and decanters, indicating their contents. Similarly, a no trespassing sign was not required to be produced in order to prove its inscription in Harper v. State, 109 Ala. 28, 19 So. 857.

The State was not required to introduce the merchandise tag into evidence in order to prove that it was from Hagedorn's. The trial court committed no error.

Next appellant contends that the trial court erred in denying his motion to require the State to produce the stolen item at trial. Apparently Hagedorn's disposed of the slip by sale or otherwise after its return by the police. Appellant asserts in brief that the State "must identify stolen property, found in the possession of the accused with that for the theft of which accused is indicted, and this must be done by most direct and positive testimony of which the case is susceptible." Haun v. State, 44 Ala.App. 675, 219 So.2d 906.

Appellant's assertion of law is correct to an extent; but Haun, supra, does not require the actual production of the...