Collins v. State, 6 Div. 40

• Decision Date: 16 October 1979
• Docket Number: 6 Div. 40
• Citation: 385 So.2d 993
• Parties: Floyd Leldon COLLINS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 993

385 So.2d 993

Floyd Leldon COLLINS, alias v. STATE.

6 Div. 40.

Court of Criminal Appeals of Alabama.

Oct. 16, 1979.

Rehearing Denied Nov. 20, 1979.

Carl E. Chamblee, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

The appellant was convicted for buying, receiving or concealing one G. E. Weathertron 5 ton capacity heat pump valued at $1,162.00. Sentence was fixed by the trial court at five years imprisonment in the state penitentiary. Oral notice of appeal was given, and although appellant was declared indigent, his trial counsel agreed to remain his attorney of record and to represent him on appeal without charge. The several issues presented for review are complex and require a detailed delineation of the facts. Two trials were begun in this matter, the second resulting in this appeal. We shall consider the facts and issues of the two trials separately so far as they are pertinent to this appeal to facilitate understanding.

Appellant was first indicted by the Cullman County Grand Jury on January 10, 1978. He was charged in a two-count indictment with grand larceny and with buying, receiving, or concealing "one General Electric Weathertron 5 ton capacity heat pump, beige in color, Model No. BGWA860RLB, Serial No. 301913640, of the value of $1,162.00, the personal property of The Schaefer Company, Inc., a corporation, against the peace and dignity of the State of Alabama." Grand Larceny was charged in Count I while buying, receiving or concealing the same heat pump was charged in Count II.

The first trial of this cause was commenced on May 22, 1978, after appellant had been duly arraigned and had pleaded not guilty to the charges. Three state witnesses testified at appellant's first trial before the proceedings were terminated. Their testimony is summarized below.

Bob Waldrop, the vice president of The Schaefer Company, Inc., testified that on June 21, 1977, his company was in the process of installing two G. E. Weathertron 5 ton capacity heat pumps at a Mormon Church. The heat pumps were owned by Schaefer Company, Inc. The model number on one of the heat pumps was BGWA860RLB and its serial number was 301913640. The serial number was on the unit when it was taken to the church for installation; however, Mr. Waldrop stated that, upon examining the recovered unit, he discovered that the serial number had been removed.

Detective Javon Daniel of the Cullman Police Department had previously testified that the recovered unit had been located at Alvin Alexander's farm on Brushy Pond Mountain in Cullman County on August 26, 1977. The heat pump was found in a barn and was covered by a tarpaulin. Detective Daniel stated that the heat pump had been in the barn approximately two months. It was transported to the Cullman Police Department and, after certain connecting parts were removed for comparison studies, was subsequently released to the Schaefer Company.

Brent Wheeler, a criminalist in the State Department of Toxicology, had also previously testified that the connecting parts removed from the recovered heat pump matched one set of the connecting parts which were left severed at the church site. The connecting parts consisted of 3/4 inch and 1/2 inch Sealtite flexible electrical conduits, and 7/8 inch and 3/8 inch copper pipes. It was Mr. Wheeler's opinion that the connecting wires and pipes had been cut in two with a hacksaw so that the heat pumps could be taken from their base at the Mormon Church.

The problem that developed during appellant's first trial on this matter centered itself on the missing serial number on the unit recovered at Alvin Alexander's farm. Because the serial number had been removed, Mr. Waldrop was unable to verify which of the two stolen heat pumps had been recovered. The recovered unit might have had serial number 301913640 as per indictment, or it might have had a different serial number. Put another way, serial number 301913640 may have belonged to the unit that was never recovered, and which was not the subject of the indictment.

The district attorney requested the appellant to consent to an amendment of the indictment by simply striking out the serial number to eliminate any variance of proof, but the appellant refused. The district attorney then moved the trial court to dismiss the prosecution by authority of Alabama Code 1975, § 15-8-90 and 15-8-91. The trial court granted the motion. The appellant contends this ruling was erroneous because there was no material variance between the allegation and proof. He further maintained that the ruling placed him in double jeopardy when he was re-indicted. These arguments are not valid.

The 1975 Code of Alabama Section 15-8-90 reads as follows:

"An indictment may be amended, with the consent of the defendant entered of record, when the name of the defendant is incorrectly stated or when any person, property or matter therein stated is incorrectly described." (Emphasis added).

Section 15-8-91 of the Code, which must be read in conjunction with the preceding sections, reads in pertinent part:

"If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be preferred at a subsequent time . . . ."

Unquestionably, there was a variance between the indictment and the proof offered. Although the state did prove that the recovered heat pump was a General Electric Weathertron 5 ton capacity unit, that The Schaefer Company owned it and that it was one of the two heat pumps stolen at the Mormon Church, it was impossible to prove that the unit's serial number was 301913640. The recovered unit simply had no serial number on it. As stated previously, serial number 301913640 may well have belonged to the unit that was never recovered. Due to this lack of certainty as to the true serial number on the recovered unit it may properly be said that the property was incorrectly described in the indictment. Sections 15-8-90 and 15-8-91 of the 1975 Code were specifically designed to remedy incorrect descriptions of property.

It should be pointed out that Section 15-8-91 of the 1975 Code does not require a material variance to exist in the indictment as the appellant suggests. "Variance" in Section 15-8-91 refers to "when the name of the defendant is incorrectly stated or when any person, property or matter (in the indictment) is incorrectly described," as per Section 15-8-90. The variance we are concerned with here is incorrectly described property.

The first indictment specified serial number 301913640. It was uncertain whether the recovered heat pump, in fact, had that serial number. Even though it was unnecessary for the state to prove the serial number to establish a prima facie case of grand larceny or buying, receiving, or concealing, the law is settled that if an indictment contains an unnecessary averment, nonetheless it becomes necessary for the state to prove it, and there can be no conviction without such proof. Gilmore v. State, 99 Ala. 154, 13 So. 536; Weatherly v. State, 33 Ala.App. 127, 30 So.2d 484. Stated another way, 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 authority it would have been incumbent upon the state to prove that the serial number on the recovered unit was that specified in the indictment. Since the appellant would not consent to an amendment to the indictment, the state was placed in the position of not being able to prove a prima facie case without the incorporation of Section 15-8-91, Code 1975.

We note that the appellant's second indictment in this matter, which was handed down by the Cullman County Grand Jury on August 7, 1978, and under which he now stands convicted, does not add any new substantive offense which he was required to defend. The second indictment simply eliminates the serial number from consideration and slightly modifies the model number and spelling of the company name, "Schaefer." Count II of the second indictment reads in pertinent part:

"The Grand Jury of said County charge that before the finding of this Indictment, Floyd Leldon Collins, alias 'Porky', whose name is otherwise unknown to the Grand Jury, did buy, receive, conceal or aid in concealing one G. E. Weathertron 5 ton capacity heat pump, beige in color, Model No. BGWA860RLB, a further and better description of which is otherwise unknown to the Grand Jury, of the value of $1,162.00, and one G. E. Weathertron 5 ton capacity heat pump, beige in color, Model No. BGWA860RLB, of the value of $2,324.00, the personal property of the Schaefer Company, Inc., a corporation, knowing that it was stolen, or having reasonable grounds for believing that it has been stolen, and not having the intent to restore it to the owner, against the peace and dignity of the State of Alabama."

On its face, if the facts which are alleged in this indictment were proved at appellant's May 22 trial, no conviction would have been warranted on the first indictment. The test establishing variance is thus complete. Wright v. State, 40 Ala.App. 683, 122 So.2d 555; Mitchell v. State, 16 Ala.App. 635, 80 So. 730. We hold therefore, that the trial court's reliance on Section 15-8-90 and Section 15-8-91, 1975 Code, was, in all respects, proper.

The dismissal does not prevent appellant being tried on a new indictment conforming to the case made by the evidence. The accused is held to have never been in jeopardy since the crime charged is not the same in the sense that it is not sustainable by the same proof as in the former indictment. Oliver v....