Causey v. State, 7 Div. 624
| Decision Date | 05 June 1979 |
| Docket Number | 7 Div. 624 |
| Citation | 374 So.2d 406 |
| Parties | Burl Eugene CAUSEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Loma B. Beaty, Fort Payne, for appellant.
Charles A. Graddick, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
Appellant-defendant was convicted of buying, receiving, concealing or aiding in concealing personal property, knowing that it had been stolen and not having the intent to restore it to the owner. He was sentenced to imprisonment for five years. The property alleged to have been stolen was described in the indictment as "One hundred forty-six Goodyear whitewall tires, G78-14, of the value of $30.00 each and of the total value of $4,380.00, the personal property of Goodyear Tire and Rubber Company, Incorporated, a corporation."
Except for the testimony of one witness, David Gabriel, a codefendant of appellant, the evidence was exclusively circumstantial as to appellant's connection with the crime.
Floyd Medlin, an employee of Goodyear Tire and Rubber Company at Gadsden, Alabama, thirty-four years, testified that on June 25, 1974, a truck of Roadway Express was loaded under the direction of the witness, who was traffic manager of Goodyear at Gadsden at the time. Eighty-eight bundles, of nine tires to a bundle, were placed on the truck. The truck with the loaded tires was routed to go to the Roadway Terminal to be there dispatched to Pontiac, Michigan.
According to further testimony of Mr. Medlin, he was called to Ft. Payne, Alabama, on June 29, 1974, saw three hundred and ninety-five of the same tires at the Police Department at Ft. Payne. He said that he checked "the orange dot and serial number" on each and every tire, that the tires were owned by Goodyear and that the value of each tire was approximately thirty dollars.
According to the testimony of Roy Gibson, then terminal manager of Roadway Express in Gadsden, a Roadway truck brought a load of tires from Goodyear, consisting of eighty-eight bundles, with each bundle containing nine tires, to the Roadway Express Company place of business on the afternoon of June 25, 1974, where they were transferred to a trailer of another unit, which after loading was sealed. On the morning of June 26, 1974, the truck and trailer were missing from the terminal. Later that day he saw the unit about "8 miles east on Highway 278." The seal of the trailer had been broken, half of the tires had been taken therefrom, and half were still in the trailer. No key had been used to start the tractor; the ignition was out of the tractor and "the ignition wires had been wired underneath in order to start the tractor." On June 29, the witness went to Ft. Payne and picked up three hundred and ninety-five tires that had "a serial number signifying that they were General Motors tires for that week going to Pontiac, Michigan." They were Goodyear whitewall tires, G-78-14, as described in the indictment. Mr. Medlin was with him at the time.
David Gabriel testified as a witness for the State that in June 1974 he lived in Smyrna, Georgia, and operated a tire store in Atlanta, in which he put "white sidewalls on black wall tires." As a result of a phone call, he went to Rome, Georgia, in a truck driven and owned by John Leonard, and after picking up a twelve-year-old boy, they were directed by the boy to a "country place" near Ft. Payne, where defendant and Gabriel loaded approximately one hundred and forty-five tires on the truck; defendant gave the witness instructions as to how to go to Smyrna, Georgia, "through Chattanooga rather than to go through Rome." The tires loaded were "all the truck would carry"; they were Goodyear tires. After the truck was loaded, he and John proceeded toward Ft. Payne by following defendant who was driving a yellow automobile, which the witness thought was a Cadillac. In Ft. Payne, the truck was stopped by the police, but the defendant kept driving.
According to the testimony of Officer David Kean of the Ft. Payne Police Department, he was on duty about 1:00 A.M., June 29, 1974, and noticed a yellow Buick cross an intersection while the light was green for it; following it was a truck that stopped for the intervening red light; two men were in the truck; the one not driving the truck was drinking beer; when the truck crossed the intersection on the green light, the witness pursued it and stopped the truck. In the truck were "John and David." At the time the truck stopped for the red light, the driver of the yellow Buick automobile looked back in the direction of the truck. The truck had a "big high bed" and was full of tires. When the driver was questioned as to his ownership and did not produce any proof thereof, the witness called for a "back-up unit" and the two men, the truck, and the tires were taken to the office of the Ft. Payne Police Department. While the witness was going into the office with the two men, he saw the automobile that he had previously observed pass the office. Officer Kean further testified that on the same morning as it was "getting daylight," he went with Officers Moses, Bethune and Collins to the home of defendant, but just before arriving there, he and Moses left the vehicle in which they rode, went through the woods back of defendant's house and another area across the road from the front of defendant's house. He noticed a pig pen back of defendant's house. Upon looking over the area across the road from defendant's house, he found two piles of "brand new tires." He made no exact count but said it was "close to one hundred and fifty, sixty, something like that." They sent for a county truck, which came to the scene, loaded the tires thereon, took them to the "City Hall," and sent them to Goodyear. In estimating the distance between the tires and defendant's house, the witness said it was about one hundred yards. There was an unoccupied house trailer about one hundred and fifty or two hundred feet from the place where the tires were found.
According to the testimony of Detective Wayne Parker, of the Ft. Payne Police Department, on the morning of June 29, 1974, he piloted a DeKalb County truck from Ft Payne to the residence of defendant to pick up the tires found across the road from defendant's home. He said in part:
In continuing the direct examination of Officer Parker, counsel interrogated him as to entering defendant's driveway and going toward his house, at which time defendant made some point as to a "search warrant," and the court ruled that it was sustaining defendant's objection at that time to anything the witness did or saw or observed, "after he went up in the drive-way." After further testimony, including an extensive cross-examination of Officer Parker, and after the testimony of another witness, Mr. Parker was recalled as a witness for the State. He was first interrogated out of the presence of the jury, on what was apparently treated by the parties as a motion to suppress testimony and other evidence as to what the witness said, did or observed after entering the driveway. The witness described the house, the road in front of the house and the driveway and a "turn-around area." He said in his testimony on the hearing out of the presence of the jury:
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