Creel v. State

• Decision Date: 19 March 1929
• Docket Number: 6 Div. 515.
• Citation: 23 Ala.App. 241,124 So. 507
• Parties: CREEL v. STATE.
• Court: Alabama Court of Appeals

124 So. 507

23 Ala.App. 241

CREEL v. STATE.

6 Div. 515.

Court of Appeals of Alabama

March 19, 1929

Rehearing Denied June 25, 1929.

Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.

Robert L. Creel was convicted of burglary, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Creel v. State, 124 So 510.

L. D Gray and J. M. Pennington, both of Jasper, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

RICE J.

Appellant hereinafter referred to as the defendant, was tried on April 4, 1928, convicted of the offense of burglary, and given a sentence to serve imprisonment in the penitentiary for a term of not less than ten nor more than twenty years.

The defendant was charged by indictment containing three counts; the first charging burglary, the second grand larceny, and the third buying, receiving, or concealing stolen property. This indictment was returned by the grand jury March 3, 1928. Defendant's pleas in abatement A and B, to both of which the state's demurrers were sustained, set up the facts that at the time this indictment was returned, and when the defendant was tried thereon, there was pending in the circuit court in which the defendant was tried another indictment against the defendant, returned December 20, 1927, charging the defendant in two counts with burglary and grand larceny, based upon the same alleged unlawful act as that charged in the indictment on which the defendant was tried and convicted in this cause; that the defendant was put upon trial in said court on the charges embraced in said indictment returned December 20, 1927, on February 14, 1928, and an order of "mistrial" was entered and the jury discharged, in said trial on February 15, 1928, without the consent of the defendant and when there was no manifest necessity for the discharge of said jury.

The defendant filed written application for continuance, sworn to, and based upon the fact that his leading counsel could not assist in the trial of the case on the day the same was set, on account of the death of a very close friend, and because the case had already been tried during the same term of the court, and a mistrial entered. The court overruled the application.

After the verdict of the jury and the sentence of court, the defendant filed motion for new trial, based upon two grounds, viz.: First, the alleged insufficiency of the evidence to support the verdict; and, second, the allegation that one O. M. Sherer, a jury commissioner, alleged to have been active in soliciting funds with which to employ the special attorneys to assist the solicitor and his assistant in the prosecution of the defendant, sought to, and probably did, exert some influence on members of the jury, against the defendant, after they had been impaneled to try the case, by wrongfully making a show of friendship for them, and remarking in their presence, "We have a good-looking jury."

The evidence introduced on behalf of the state tended to show, in consonance with the charge laid in the indictment, that the store of the Cash Grain Company, a partnership composed of J. O. Argo and R. A. Argo, in which store were kept for sale goods, wares, and merchandise, all things of value, and all the property of said partnership, was broken into and entered by the defendant, and certain of said articles of merchandise feloniously taken therefrom by him. An outline or summary, of such evidence, cannot conveniently be incorporated herein.

The evidence on behalf of the defendant tended to refute that on behalf of the state by showing that the merchandise in question, defendant's possession of which was not denied by him, was purchased by defendant from a woman who lived near the store of the Cash Grain Company, and removed from said woman's house at exactly the time the state's testimony tends to show the store of the Cash Grain Company to have been entered.

The only "breaking" tended to be shown by the state's evidence, in connection with the "entering" of the store of the Cash Grain Company, which was likewise indicated, consisted of "unlocking" the lock on the front door with a key. But under our decisions this form of "breaking and entering" when shown is sufficient to sustain the charge of burglary on which defendant was convicted. Norman v. State, 13 Ala. App. 337, 69 So. 362.

While we have carefully read the entire record in this case, and given particular consideration to each ruling made, still it appears clearly that the only rulings not manifestly correct and which merit any discussion at our hands, are those the exceptions to which have been argued by defendant's able counsel in their brief filed on this appeal. We will therefore confine our remarks to the questions argued for error in the said brief. No...