Cameron v. State
Decision Date | 19 December 1972 |
Docket Number | 8 Div. 280 |
Citation | 49 Ala.App. 482,273 So.2d 242 |
Parties | Jimmy Frank CAMERON v. STATE. |
Court | Alabama Court of Criminal Appeals |
William J. Baxley, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.
Appellant was tried and convicted for the offense of burglary in the second degree and his punishment fixed at eight years imprisonment in the penitentiary.
At arraignment the court ascertained that appellant desired an attorney to represent and defend him but was financially unable to employ counsel. The court thereupon appointed Hon. R. Earle Proctor and Hon. William H. Rogers, two outstanding and leading lawyers of the Moulton bar to represent him at trial. Mr. Rogers represents appellant on appeal.
On the night of December 9, or in the early morning hours of December 10, 1971, the store building of Windell Thrasher located near the intersection of Highways 33 and 157 in the city limits of Moulton, Lawrence County, Alabama, was broken into. According to the testimony of Mr. Thrasher he was notified around 3:00 A.M on December 10, 1971, that his store had been burglarized. When he arrived at the store he was met by a police officer from the City of Moulton. He went in the store and discovered that a .38 caliber pistol, a holster and a box of shells, together with about 75 cartons of cigarettes, currency and coins from the cash register, and some pennies in a quart fruit jar were all missing. Entrance into the store was gained by the removal of some wall paneling from inside a restroom separating the restroom from the main part of the store building. Mr. Thrasher testified that since the burglary, he had not seen any of the stolen goods that were taken from his store except the .38 caliber pistol in evidence.
From the record:
'Q. Did you find anything missing and, if so, what did you find missing?
'A. Cigarettes, some of them were gone; the cash register had been emptied and some pennies in some quart jugs were gone, and a .38 snub nose Police Special was gone with the scabbard.
'Q. A .38 caliber?
'A. Yes, sir.
'Q. A Police Special?
'A. Yes, sir.
'Q. Do you know what make?
'A. It was a Brazilian make, I think.
'Q. Anyway, a pistol. It was gone?
'A. Yes, sir.
'Q. Did you ever see that particular .38 caliber pistol again?
'A. Yes, sir.
'Q. Subsequent to that time?
'A. Yes, sir.
'Q. Did you--who had it when you saw it?
'A. The chief of police.
'Q. Chief Farris?
'A. Yes, sir.
'Q. And he had it?
'A. Yes, sir.
'Q. Did he keep it when you saw it in his possession?
'A. Yes, sir, he had it at the police department.
'Q. I will ask you to examine this pistol and tell the jury whether or not that pistol belongs to you and whether or not it was stolen from your store on the night of December the 9th or the early morning of December the 10th?
'A. I would say this was the gun.
'Q. Is that the pistol that was stolen?
'A. Yes, sir.
'Q. Was it loaded at the time it was taken?
'A. Yes, sir, and it was in a scabbard.
'Q. You haven't seen the scabbard?
'A. No, sir. And there was a box of shells.
'Q. Do you know how many bullets it had in it?
'A. There was a box of shells with it, too.
'Q. You haven't seen them since?
'A. No, sir.
'Q. The chief brought--and this pistol that you have just laid down is the pistol that was stolen from your store?
'A. Yes, sir.
'Q. Mr. Thrasher, I noticed that you said that in your remembrance that you thought this was the gun, and you said that it was; did you have any identifying marks on this pistol before it was taken from your store?
'A. No, sir.
'Q. Did you know the serial number of this pistol before it was taken from your store?
'A. No, sir.
'Q. I notice that the serial number has been removed or attempted to be removed from this weapon.
'A. It wasn't like that when it left the store.
'Q. It wasn't like that when it left the store?
'A. No, sir.
'Q. Then, Mr. Thrasher, if you didn't have any identifying marks on this pistol, and if you didn't have the serial number on this pistol, how can you say this is the pistol that was taken from your store? Do you know how many pistols of this particular model were made?
'A. No, sir, I don't. But did you ever have something and couldn't tell it when you seen it?
'Q. Yes, sir. I got a picket full of change right now and I can't tell one penny from any other.
' Whereupon the instrument hereinabove referred to was marked for identification as State's Exhibit No. 1, and received in evidence.
'STATE OF ALABAMA
LAWRENCE COUNTY
'I, Leon R. Eaves, Official Court Reporter for the Thirty-Sixth Judicial Circuit of Alabama, hereby certify that State's Exhibit No. 1 is a .38 caliber pistol and has written on the barrel on the right side '. 38 Special'. Under the barrel on the right side is written 'I.N.A.' and under that is written 'Made in Brazil."
On cross-examination, Mr. Thrasher testified:
'Q. Mr. Thrasher, now you have told the Judge that in your opinion that was the gun that was taken from your store, in your judgment; now, what do you base your judgment on if you didn't have any identifying marks on it and you didn't have the serial number on it; what are you basing that statement on, in your judgment?
'A. Well, when I locked the store up, there was a gun just like that in the drawer in a holster.
'Q. You are saying there was a gun just like that in there?
'A. Yes, sir, except it had a serial number on it.
'Q. Except it had a serial number and this one doesn't have a serial number?
'A. Yes, sir.
'Q. Then your judgment is, you are basing your judgment on the fact that there was a gun similar to this one in your store when you left, and the similarity of this gun and that gun, you say is what you are basing your judgment on without any identifying marks; is that correct?
'A. All I know is that looks like the gun.
'Q. It looks like the gun?
'A. Yes, sir.
'Q. But this is a serious case as all cases are, Mr. Thrasher, and of course you are under oath here; is there any mark on this gun that you can point to and definitely say, 'That was the gun that was in my store?'
On re-direct, the following occurred:
'Q. Let me ask you just one more question, please, sir: What was the difference in the size of the pistol that you had stolen and the size of this pistol here that I have in my hand and has been introduced into evidence as State's Exhibit 1?
'A. Not any.
'Q. What was the difference in the color and the plastic or whatever it is made of, the handle here? What kind of handle did yours have? Did yours have the same kind of handle?
'A. Yes, sir.
'Q. Was the handle identical with this with the same kind of markings?
'A. Yes, sir.
'Q. This has something like a tiger, I don't know what kind of animal it is; did the pistol you had have that same animal on it that's on this one right here?
'A. Yes, sir.
'Q. Identical?
'A. Yes, sir.
'Q. You said it was a Brazil gun, and this says 'I.N.A., made in Brazil,' did the pistol that was taken from your store have letters just like that on it?
'
'
Appellant and two other individuals, Jerry Charles Hagood and Lloyd Smith were indicted for this burglary. Hagood and Smith pleaded guilty and their application for probation was pending at the time of appellant's trial and were witnesses for the State. According to their testimony, they had been with appellant all day during December 9 and all day on December 10; that the three of them went to Thrasher's store and that while Hagood removed the paneling, appellant was present part of the time and acted as a 'look-out' at other times; that after the paneling was removed, appellant and Smith entered the store and Hagood was on 'watch' duty. When appellant and Smith returned with the fruits of the burglary, they put the two boxes of cigarettes down near the restroom and all three walked across the street to the car they had parked there before breaking into the store. Hagood and Smith got in the car and drove back to the store and got the cigarettes,...
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