Dolvin v. State, 8 Div. 131

• Citation: 255 So.2d 52,47 Ala.App. 382
• Decision Date: 05 October 1971
• Docket Number: 8 Div. 131
• Parties: Glenn DOLVIN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 52

255 So.2d 52

47 Ala.App. 382

Glenn DOLVIN v. STATE.

8 Div. 131.

Court of Criminal Appeals of Alabama.

Oct. 5, 1971.

Rehearing Denied Nov. 2, 1971.

J. N. Powell, Jr., James Francis, Decatur, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

CATES, Judge.

Indictment for grand larceny and in Count II for receiving, etc., the same property, a 1955 Buick valued at $250.00. The jury gave a general verdict of guilty and the court, after adjudging defendant 'guilty as charged' and after allocutus, sentenced him to ten years in the penitentiary.

I

The car belonged to one Ray Lovett who was not available at the trial. His wife was allowed to sit with the District Attorney over defense objection.

The record (p. 17) shows the following:

'MR. POWELL: (W)e object--The Defendant objects to Mrs. Lovett being out from under the rule in this case and we think it's prejudicial in her case and it is prejudice and we enter an objection and ask her not to be left out from under the rule.

'THE COURT: I understand that the prosecuting witness, the owner of the automobile, is not present, is that right?

'MR. NELSON: That's correct.

'THE COURT: Since he is not present, I will permit someone representing him to remain out from under the rule unless something occurs which would be--Would tned to be prejudicial to the jury and if something occurs in the mean time pending the trial which would make it prejudicial, then, we would change the rule.

'MR. POWELL: Are you overruling the motion?

'THE COURT: Yes, I overrule the motion.'

We are asked to find error because of an alleged good ground for a motion for new trial, viz.,

'9. The Court erred in permitting Mrs. Lovett, who was the wife of a missing witness, to sit at the table with the prosecuting attorney in an anguished, weeping and emotional state, during the process of the trial.'

Other than the motion for new trial, our attention has been called to no other instance wherein the court below was asked to restrain Mrs. Lovett's claimed lachry-mosity.

We hold that if defendant though Mrs. Lovett's weeping was prejudicial he should have promptly called the court's attention to it for remedy rather than allowing it to continue unabated (as his brief admits).

In Hanye v. State, 211 Ala. 555, 101 So. 108, where the deceased's widow staged a weeping demonstration, Gardner, J., wrote:

'Upon the attention of the court being directed to this occurrence the trial judge immediately ordered the sheriff to escort the widow from the courtroom. There was no further or other request made of the trial judge. The widow of the deceased was only a witness and an interested spectator. All that occurred took place in the presence of the defendant and his counsel. There was no request for a delay or postponement of the trial or discharge of the jury, or that the court should give any instructions admonishing them against permitting themselves to be affected by any such demonstration. Having full knowledge and remaining silent, we are of the opinion the general rule applies to the defendant to the effect that he would have no right to thus speculate on the chance of a favorable verdict, and afterwards complain thereof as error on motion for a new trial. * * *

'Moreover, we do not entertain the view that such demonstration was of so highly a prejudicial character as to be incapable of eradicating the effect thereof from the mind of the jury by proper admonition and instructions from the trial court. * * *.'

We hold that no point was timely reserved in the trial below so as to bring the matter for review on appeal.

II

The second point argued was preserved below for our ruling by way of a motion to exclude the State's evidence made immediately after the prosecution rested. Defense counsel assigned insufficient evidence to put the defendant 'at the scene of the crime.' The motion was overruled.

Officer Cook pursued someone driving through a shopping center in a 1955 Buick, later shown to have been Lovett's stolen car. The chase turned to one on foot after the Buick ran up on a sidewalk in the shopping center.

Cook testified in part:

'Q All right, sir, how many people could you see in the car that you chased down 6th Avenue where he ran up on the side walk at Gateway Shopping Center?

'A One.

'Q Did you have your head lights on at that time?

'A Yes, sir, I did.

'Q Bill, just tell the jury, and in case some of them are not familar (sic) with 6th Avenue, is it a dark street or well lighted or just describe the conditions down there that night when you were chasing him?

'A 6th Avenue is well lighted. It was a well lighted street.

'Q Could you see the other man in the automobile you were chasing?

'A Yes, sir, I could.

'Q Is it the same man--What did he do after he ran up on the sidewalk?

'A I was approximately a hundred foot behind him when he hit the sidewalk and went on it. He jumped out of the car. By the time I got down to where he was at, he was running down through the breezeway and had...