Brown v. State

• Decision Date: 09 February 1954
• Docket Number: 6 Div. 657
• Citation: 74 So.2d 273,37 Ala.App. 516
• Parties: BROWN v. STATE.
• Court: Alabama Court of Appeals

Page 273

74 So.2d 273

37 Ala.App. 516

BROWN v. STATE.

6 Div. 657.

Court of Appeals of Alabama.

Feb. 9, 1954.

Rehearing Denied March 3, 1954.

Ray & Giles, Birmingham, for appellant.

Si Garrett, Atty. Gen., Robt. P. Bradley, Asst. Atty. Gen., for the state.

CARR, Presiding Judge.

The indictment in this case charges under the first count grant larceny, and under the second receiving and concealing stolen property. The jury found the defendant guilty under the first count.

The counts of the indictment are each in code form, and the demurrers thereto were overruled without error. Flott v. State, 24 Ala.App. 584, 139 So. 298; Rogers v. State, 17 Ala.App. 175, 83 So. 359.

Preliminary to the main trial procedure, appellant's attorney challenged for cause one of the prospective jurors. The ground upon which insistence was made was that the venireman was employed by the State of Alabama as a revenue examiner.

We reviewed this identical question in the recent case of McAdory v. State, Ala.App., 68 So.2d 68.

We held that the disqualifications of a prospective juror, on account of bias, may be actual or implied. In that case, as in the case at bar, there was no contention that the juror's employment was in any manner involved in the prosecution. Under these circumstances, we concluded that the juror in question was not subject to challenge for cause.

In material aspects there is no conflict in the evidence.

The defendant did not testify at the trial nor introduce any testimony in his behalf.

Briefly stated, the facts are as follows:

Mr. J. C. Armstrong operated a grocery store. In conjunction with a number of other allied stores in the city of Birmingham, Alabama, he instituted a prize drawing plan as an advertising program. The person holding the lucky number was to receive a television set.

Those entering the store were given tickets with stubs attached. The ticket and the stub bore the same numbers. The ticket was kept by the visitor, and the stub was placed in a box which remained in the store.

At the time of the drawing a stub bearing the number 13958 was drawn from the container. The number drawn was given publicity by posting, displaying, and otherwise.

About 9:20 A.M. on the next day after the drawing, Frank Wegent, accompanied by a young lady, came to Mr. Armstrong's store and presented a ticket, with stub detached, bearing the number indicated above. The television set was delivered to the couple.

About thirty minutes later, a Mrs. Jones presented a ticket bearing the same number.

According to the testimony, much of which was by expert witnesses, the ticket presented by Mr. Wegent was a counterfeit and that held by Mr. Jones was authentic.

The State relied to a great extent on the testimony of Wegent, who unquestionably was an accomplice. This witness testified to facts which clearly made the appellant a party to the fraudulent scheme or plan.

We are faced with the task of deciding whether or not the testimony of the accomplice was corroborated. Title 15, Sec. 307, Code 1940.

It appears from the evidence that all the concerns which had adopted the plan had drawings on the same day and used similar methods of conducting the advertising program.

The proof shows that two other grocery stores were victims of the fraudulent scheme and these were perpetrated by Wegent and the appellant. One of these occurred at about 7:00 P.M. on the day just prior to the Armstrong incident. At this time the defendant and Wegent were together. The former held the fake ticket and claimed the television set.

Another was attempted about thirty minutes before the occasion just indicated. At this time some man was with Wegent, but the proprietor was unable to say that this person was the appellant. Wegent did not get the television on this visit, but went back next morning alone and got the machine.

These separate offenses were formed of patterns that had features and resemblances which were in common with the one upon which this prosecution was based.

The materiality of the proof of these prior and subsequent offenses is justified under the doctrine announced in the following authorities: Brasher v. State, 33 Ala.App. 13, 30 So.2d 26, certiorari denied 249 Ala. 96, 30 So.2d 31; Weatherspoon v. State, 36 Ala.App. 392, 56 So.2d 793; Shouse v. State, 36 Ala.App. 614, 63 So.2d 722; Whitley v. State, Ala.App., 64 So.2d 135.

Pertinent to this reviewable inquiry, it is fitting to note that the appellant was found in possession of a ticket which, with the exception of a different number and the name of another grocery concern, was identical in every respect to the one which the accomplice presented.

'It is not necessary that the corroborating evidence refer to any particular statement or fact testified to by the accomplice. If it strengthens the probative criminating force of his testimony and tends to connect the defendant with the commission of the offense, it is sufficient to warrant the submission of the issue of guilt or innocence to the jury.' Smith v. State, 230 Ala. 413, 161 So. 538, 542.

We are clear to the conclusion that in the instant case the rule of instant concern was not violated, and the appellant was not due the general affirmative charge because the testimony of the accomplice was not corroborated. The following authorities sustain this view: Horn v. State, 15 Ala.App. 213, 72 So. 768; Brooks v. State, 34 Ala.App. 275, 38 So.2d 744; Fuller v. State, 34 Ala.App. 211, 39 So.2d 24; Thomas v. State, 34...