Davidson v. State, 6 Div. 320

• Decision Date: 16 May 1978
• Docket Number: 6 Div. 320
• Citation: 360 So.2d 728
• Parties: Clara DAVIDSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 728

360 So.2d 728

Clara DAVIDSON v. STATE.

6 Div. 320.

Court of Criminal Appeals of Alabama.

May 16, 1978.

Rehearing Denied June 20, 1978.

J. Wilson Dinsmore of Dinsmore & Waites, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and James L. O'Kelley, Asst. Atty. Gen., for the State.

BOWEN, Judge.

In a two count indictment the appellant was charged with larceny and with buying and receiving stolen property. A jury found her guilty of buying and receiving stolen property. The trial judge sentenced the appellant to five years' imprisonment. From this conviction appeal is taken.

Two questions are presented for our review: (1) Whether reversible error is committed where the trial judge fails to instruct the jury on the elements of the offense and (2) whether a conviction may be had for buying and receiving stolen property where the accused stole the property from its rightful owner.

The state's evidence reveals that Mrs. Marie Harwood Crawford answered an ad in a newspaper offering a house for rent. On the 6th of January, 1975, Mrs. Crawford entered into a contractual arrangement for the house. She gave the appellant, who identified herself as Sue Hill, two hundred dollars in cash and received a receipt evidencing the transaction, signed by "Sue Hill". Mrs. Crawford positively identified the appellant as the woman who signed the receipt.

On the day appointed for Mrs. Crawford to take possession of the property she went to its location at 408 13th Terrace Northwest in Centerpoint, Alabama (Jefferson County), only to find seven other couples waiting to move into the same house and one couple who had already moved in.

The defense was that the appellant never entered into any rental agreement with Mrs. Crawford and simply did not commit any crime. Mrs. Geneva Bellamy, a notary public, testified that one "Sue Hill" signed a mortgage on the subject property in her presence. However Mrs. Bellamy stated that the "Sue Hill" who signed the mortgage was not the appellant.

Mrs. Mary Beacom, a handwriting expert, testified that the signature on Mrs. Crawford's receipt and an exemplar of the appellant's handwriting were not written by the same person.

I

In his oral charge to the jury the trial judge stated the offenses with which the appellant was charged but did not detail their elements. The appellant contends that even without any objection this failure constitutes reversible error.

The trial court has a mandatory duty of instructing the jury orally as to the different and distinguishing elements of the offense charged.

"In Mitchell v. State, 210 Ala. 457, 98 So. 285, the court said: 'It was the duty of the court mandatory duty of the court to instruct the jury orally as to the different and distinguishing elements of (the offense). Without such instructions from the court, the jury could not intelligently comply with their statutory duty. This right of the defendant to have the jury so charged by the court was valuable. The duty resting on the court to so charge the jury is imperative. The error committed by the court in refusing to do so is manifest." Gilbert v. State, 32 Ala.App. 200, 201, 23 So.2d 22, 23 (1945).

Yet, even where the judge fails to charge the jury on the elements of the offense, this error may not be raised for the first time on appeal. To constitute ground for reversal, objection or exception to the oral charge is necessary. Mitchell v. State, 210 Ala. 457, 458, 98 So. 285 (1923).

"The partial or total failure or omission of a trial court to instruct a jury in its oral charge with reference to principles or rules of law that may be, or even are, involved in the trial, cannot be made the basis for a reviewable question on appeal. Williams v. State, 147 Ala. 10, 25, 41 So. 992; Jones v. State, 174 Ala. 85, 93, 57 So. 36. The party's remedy in such cases of mere failure or omission is to request special written instructions according to the practice established by the statutes." McPherson v. State, 198 Ala. 5, 7, 73 So. 387, 387 (1916).

Though the appellant raised objection to the oral charge of the trial court in his motion for new trial, this is not sufficient to invoke review by this court where no exception or objection was made at trial before the jury retired. Snider v. State, 39 Ala.App. 234, 97 So.2d 163 (1957).

II

The appellant alleges that the verdict of the jury was contrary to the law and evidence. It is argued that the appellant could not be legally convicted of buying, receiving and concealing stolen property because the state's own evidence shows that the appellant received the goods charged to be stolen, the two hundred dollars, from their rightful owner. The appellant refers to the rule in other jurisdictions that an accused may be convicted of criminally receiving stolen property, even though he was a guilty participant in the stealing of it, where he took no part in the actual caption and asportation, but...