Bell v. State, 7 Div. 604
| Court | Alabama Court of Criminal Appeals |
| Citation | 364 So.2d 420 |
| Docket Number | 7 Div. 604 |
| Parties | Diane BELL, alias v. STATE. |
| Decision Date | 03 October 1978 |
Page 420
v.
STATE.
Rehearing Denied Oct. 31, 1978.
Page 421
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
Page 422
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...
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Dotch v. State , CR–07–1913.
...be reversed because the victims' descriptions of the person who assaulted them differed presented a jury question). Cf. Bell v. State, 364 So.2d 420, 423 (Ala.Crim.App.1978) (“The fact that the State's witnesses described the item taken somewhat differently presented a question for the jury......
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Dotch v. State, No. CR-07-1913 (Ala. Crim. App. 4/2/2010), CR-07-1913.
...be reversed because the victims' descriptions of the person who assaulted them differed presented a jury question). Cf. Bell v. State, 364 So. 2d 420, 423 (Ala. Crim. App. 1978) ("The fact that the State's witnesses described the item taken somewhat differently presented a question for the ......
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Nance v. State, 4 Div. 967
...but also of the particular act or means by which it was committed. Chambers v. State, Ala.Cr.App., 364 So.2d 416, cert. denied, Ala., 364 So.2d 420 (1978). See also: Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977). However, an averment of the means, al......
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Collins v. State, 6 Div. 40
...where a particular kind of property is specifically described in an indictment, it must be proved as laid. Bell v. State, Ala.Cr.App., 364 So.2d 420, cert. denied Ala., 364 So.2d 424; Lee v. State, 20 Ala.App. 334, 101 So. 907, cert. denied, 212 Ala. 135, 101 So. 909. Under the foregoing au......