Bridges v. State

• Citation: 391 So.2d 1086
• Decision Date: 25 November 1980
• Docket Number: 4 Div. 836
• Parties: Richard F. BRIDGES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1086

391 So.2d 1086

Richard F. BRIDGES v. STATE.

4 Div. 836.

Court of Criminal Appeals of Alabama.

Nov. 25, 1980.

Dow T. Huskey, of Huskey & Etheredge, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for grand larceny. Sentence was fourteen months' imprisonment which was suspended. The defendant was placed on unsupervised probation.

I

Initially, it is alleged that the trial judge committed reversible error in refusing to allow defense counsel to cross examine prosecution witness Jud Colley about a civil action he had instituted against the defendant.

The grand larceny charged in the indictment involved a theft of a waste oil processor, alleged to be "the personal property of Mary Chevrolet Company, Inc." Colley was the president of Mary Chevrolet and had filed a civil action for damages against the defendant based on the defendant's taking of the waste oil processor.

Defense counsel sought to prove that Mary Chevrolet did not own the waste oil processor by attempting to cross examine Colley about the civil action. At trial defense counsel did not contend that he was attempting to show bias by the disclosure of the civil action. To show bias, testimony concerning the civil suit would have been admissible. Brooks v. State, 393 So.2d 486 (1980); Green v. State, 258 Ala. 471, 64 So.2d 84 (1953).

However, the fact that a civil suit was pending against the defendant was irrelevant and without probative value to prove who owned the waste oil processor. The general rule is:

"It is not, however, permissible to introduce in evidence civil judgments or decrees rendered against the defendant, even though they involve the same matters on the trial of a criminal prosecution, for the obvious reason that the judgment or decree in the civil action may have been rendered on a state of facts totally irrelevant in the criminal case, and on a different rate of the measure of proof. It is quite probable, also, that the defendant might be civilly, but not criminally, liable, nor is there a mutuality of parties. The proceedings are totally different, and such judgments and decrees are not admissible as a general proposition. Britton v. State, 77 Ala. 202."

Wall v. State, 2 Ala.App. 157, 169, 56 So. 57 (1911).

In Hill v. State, 366 So.2d 296, 314 (Ala.Cr.App.1978), affirmed, 366 So.2d 318 (Ala.1979), this Court held that in a prosecution in which the defendant was convicted of first degree manslaughter of a person fatally injured in an automobile accident, the restriction of the defendant's cross examination so as to exclude evidence of a pending wrongful death action, which was brought against the defendant and which arose from the same facts as the criminal case, was not error.

Here the trial judge refused to allow defense counsel to go into the matter of any civil action against the defendant unless the relevancy of that case could be established. At trial defense counsel's sole contention for the relevancy of the civil suit was to "show who actually owned this piece of machinery." The trial judge did not limit defense counsel from showing ownership in any other manner:

"THE COURT: Let me see if I can't clarify it. If you want to get into the ownership and possession of this thing, I think you can ask him a questions relevant or relating to the contract if you want to, but as far as any pending suits, I don't think you can ask that."

We find no error in the action of the trial judge. The pending civil suit against the defendant simply had no probative value to the issues involved in this criminal action although both civil and criminal actions arose out of the same facts.

As stated, nowhere in the record does defense counsel contend that he was trying to show the bias of the witness by showing that he had filed a civil action for damages against the defendant. This contention is made for the first time on appeal. A defendant is bound by the objection which he asserted at trial. Franklin v. State, 357 So.2d 364 (Ala.Cr.App.), cert. denied, Ex parte Franklin, 357 So.2d 368 (Ala.1978). Only those grounds of objection presented to the trial court can serve as a basis for a reversal of its action. Harris v. State, 57 Ala.App. 558, 329 So.2d 618 (1976).

II

The defendant also contends that the trial court erred in permitting the State to cross examine the defendant, over objection, on the amount of money the defendant had raised through a corporation (Oil Salvage Manufacturing, Inc.) from the sale of "exclusive territories." The capital necessary to fund the construction of the waste oil processing machines was to be acquired from the sale of exclusive territories for the marketing of the machine.

"Q. How much money (was received from the sale of exclusive territories)?

"MR. STOKES (Defense Counsel): This has nothing to do with this, Judge.

"THE COURT: Overruled. I think we have opened it all up.

"MR. STOKES: All right, sir."

Defense counsel's cross examination of State's witness Jud Colley revealed that the corporation the defendant had set up to sell franchises for the machine had generated one hundred thousand dollars. The State, on redirect examination, questioned Colley on whether the defendant had received any of this money.

Initially, it appears that defense counsel waived any objection he might have had by agreeing to the Judge's ruling. However, even if the adverse ruling was not concurred in by defense counsel, we find no error in the action of the trial judge.

The defendant claimed rightful ownership of the waste oil processor through his interest in Oil Salvage Manufacturing, Inc. (OSMI) and Oil Savings, Inc. (OSI). This was the foundation for his entire defense. The fact that the defendant actually removed the waste oil processor from the premises of Mary Chevrolet has never been disputed.

The defendant was the president of OSMI since its inception. The purpose of OSMI was to raise the capital necessary to fund the development of the waste oil processor. This was to be accomplished through the sale of exclusive territories to the marketing rights to the machine. The defendant himself testified, "I was the one that raised the money and I was the one that had the most to gain and the most to lose, so I wasn't going to stand by and see the project go down the drain." Colley testified that C & F Oil was to receive approximately $300,000.00 to set up a factory and manufacture the machines. This money was to come from OSMI through OSI.

It can readily be seen that the internal structure and operation of OSMI, OSI, and C & F Oil were interwoven and connected. Consequently, it was essential, under his defense, that the defendant be allowed to show what interest he had, if any, in these companies and that the State be permitted to cross examine him on this issue.

The question objected to sought evidence relevant to the issues in this case.

"Any testimony tending reasonably to establish the probability or improbability of a fact in controversy is admissible. Holland v. State, 25 Ala.App. 147, 142 So. 112 (1932). The test of probative value or relevancy of a fact is whether it has any tendency to throw light upon the matter in issue even though such light may be weak and fall short of its intended demonstration. McCain v. State, 46 Ala.App. 627, 247 So.2d 383 (1971)."

Tate v. State, 346 So.2d 515, 520 (Ala.Cr.App. 1977).

Consequently, we find no error in the action of the trial court.

III

The indictment charged the larceny of one waste oil processor, "the personal property of Mary Chevrolet Company, Inc." The State's evidence proved that the machine was owned by C & F Oil Co. and that Mary Chevrolet had rightful possession of the processor at the time it was stolen. This constituted no variance between the indictment and the evidence. In Hubbard v. State, 374 So.2d 427 (Ala.Cr.App.1979), this Court held that there was no variance between an indictment which alleged that the property stolen was the property of a representative of the corporation during the time the property was stolen and proof that the corporation was the owner of the property. An allegation in an indictment for grand larceny is not defective because the stolen property was alleged to be owned by a warehouse which was in fact the bailee. Davenport v. State, 53 Ala.App. 326, 299 So.2d 767, cert. denied, 293 Ala. 751, 299 So.2d 771 (1974). "The allegation of ownership of property in the name of a bailee or trustee does not affect the sufficiency or validity of the indictment." Davenport, 53 Ala.App. at 329, 299 So.2d 767.

In connection with this issue, the defendant also contends that the State never proved that Mary Chevrolet was in lawful possession of the waste oil processor. However, Jud Colley testified that C & F Oil owned the machine by virtue of its oral contract with OSI; that C & F Oil hired Mary Chevrolet to develop the machine; and that Mary Chevrolet "owned the machine by virtue of possession by virtue of the bills owed on the machine." The fact that the defendant testified that OSI owned the machine and that he as president and former director of OSI had a legal right to possession and control of the machine created a question of fact for the jury.

IV

As his final ground for reversing his conviction, the defendant attacks the competence of his...