Crowe v. State
| Decision Date | 16 March 1976 |
| Docket Number | 7 Div. 420 |
| Citation | 333 So.2d 902 |
| Parties | Jerry CROWE v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Beck & Beck, Fort Payne, for appellant.
William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
A jury found appellant guilty under both counts of a two-count indictment, one charging him with burglary in the second degree, the other with grand larceny. The court rendered judgment against him accordingly and sentenced him to four years imprisonment in the penitentiary, the punishment being fixed by the court.
No contention is here made, and we see no reasonable basis for any, that the evidence was not sufficient upon which to find defendant guilty of both counts. The owner of an uninhabited dwelling house and the contents thereof testified as to the breaking and entry and the removal therefrom of a color television set, which he valued at $500.00. The circumstances shown by the owner's testimony was sufficient to establish the corpus delicti of each offense. Another witness for the State testified that he saw defendant and his coindictee force an entry into the dwelling and remove therefrom the television set.
Under such circumstances, the court should have treated, as it did treat, the two crimes as one crime for the purpose of punishment and sentence. By Code of Alabama 1940, Tit. 14, § 86, the maximum punishment for burglary in the second degree is ten years and by § 331, the maximum punishment for grand larceny is also ten years. The trial court acted appropriately and without any possible prejudice to defendant in its judgment and sentence. There was no splitting up of a single crime into two crimes, as contended by appellant. The very opposite is true. The two crimes were merged into one, as they should have been, and thereby no real or potential injury was caused defendant in the form of exposure to double jeopardy, more than one punishment for the same offense, or otherwise. Mayes v. State, 56 Ala.App. 456, 322 So.2d 746 (1975); Knight v. State, 50 Ala.App. 457, 280 So.2d 163 (1973).
Industrious and resourceful counsel for appellant set forth in their brief fifteen assignments of error, the fifteenth being that the court erred in refusing the requested charge by the defendant that the jury could not convict him of burglary and grand larceny 'both in this case.' In accordance with what we have just stated, the trial court correctly refused to give such charge.
Mr. V. E. Satterfield testified that he was an eye witness to the crime. While interrogating an officer with the Alabama Bureau of Investigation, Public Safety Department, the attorney for the State asked him if he talked with Mr. Satterfield when he, the officer, went to the dwelling to investigate the burglary. Defendant's objection to the question was overruled, and the witness answered that he did talk with Mr. Satterfield. We fail to see any possible harm to defendant in the court's overruling defendant's objection to the question, but even so the court was not in error. 'It is always competent for a witness to state that he had a conversation with a third person, on a certain subject germane to the issue in dispute, and at a time specified, as a reason for his accurate recollection of a fact to which he has testified.' Adams v. Robinson, 66 Ala. 586.
Defendant objected to a question asked the witness Satterfield by the State, whether the witness showed a Mr. Harold Richards where the witness was sitting when the burglary happened. However, the question was never answered, and the court's overruling the objection to the question furnishes no basis for a charge of reversible error. Cartlidge v. State, 52 Ala.App. 495, 294 So.2d 462, cert. denied 292 Ala. 715, 294 So.2d 467; Haisten v. State, 50 Ala.App. 504, 280 So.2d 209.
Four assignments of error challenge the action of the trial court in overruling defendant's objections to questions asked on cross-examination of various character witnesses for defendant, whether they had heard that defendant had committed, or had been indicted for or charged with, certain specfic, designated crimes. This is permissible cross-examination. Judge McElroy states:
'. . . (T)he state on cross-examination, for the purpose of testing the credibility of the witness, may ask him whether Prior to the time of the alleged offense, he heard reports, rumors or statements derogatory of accused.'
and cites a large number of cases wherein the principle had been applied. McElroy, Law of Evidence in Alabama, (2d ed.) § 27.01(5).
Judge Harris summarized the principle in Frazier v. State, 56 Ala.App. 166, 320 So.2d 99 (1975) as follows:
'Where witnesses testified as to the good reputation of the defendant, it was permissible on cross-examination to test their knowledge of the defendant's reputation by asking if they had heard of specific acts of the defendant that tended to mitigate against his reputation or character . . . Baldwin v. State, 282 Ala. 653, 213 So.2d 819.'
Although the questions asked the witnesses were not limited, as they should have been limited, to the time prior to the date of the alleged offense, no point was made by defendant to the generality in time of the questions. Furthermore, it is to be noted that as to time the questions asked on cross-examination followed the pattern set by the defense in its questioning the character witnesses for defendant without limiting their questions to his reputation prior to the time of the alleged offense.
One character witness for defendant was asked on cross-examination by the State whether he had often drunk whiskey with the father of the co-indictee. Defendant's objection to the question was overruled, but the witness did not answer this specific question. He was thereafter asked substantially the same question, to which no objection was made. No reversible error occurs in the overruling of an objection to a question that it never answered or in admitting an answer to a question to which no objection is made. Wade v. State, 49...
To continue reading
Request your trial
-
Chambliss v. State
...his testimony or which tend to militate against his reputation or character. Baldwin v. State, 282 Ala. 653, 213 So.2d 819; Crowe v. State, Ala.Cr.App., 333 So.2d 902. Appellant claims that the prosecutor in closing argument attempted to "seed the record" with prejudicial and improper argum......
-
Travis v. State
...of the accused. Baldwin v. State, 282 Ala. 653, 213 So.2d 819 (1968); Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960); Crowe v. State, Ala.Cr.App., 333 So.2d 902, cert. denied, Ala., 333 So.2d 906 (1976); Houston v. State, 50 Ala.App. 536, 280 So.2d 797, cert. denied, 291 Ala. 784, 280 So......
-
Odom v. State
...tended to mitigate against his reputation or character. . . . Baldwin v. State, 282 Ala. 653, 213 So.2d 819." Also see: Crowe v. State, Ala.Cr.App., 333 So.2d 902 (1976); Sexton v. State, 54 Ala.App. 665, 312 So.2d 71 (1975). Such a line of questioning is permissible because an adversary ha......
-
Wade v. State
...of the case. Such grounds of objection are not available on appeal. Fuller v. State, Ala.Cr.App., 338 So.2d 492 (1976); Crowe v. State, Ala.Cr.App., 333 So.2d 902, cert. denied, 333 So.2d 906; Burrow v. State, 55 Ala.App. 24, 312 So.2d 596; Reese v. State, 49 Ala.App. 167, 269 So.2d 622, ce......