Eddy v. State

• Decision Date: 20 December 1977
• Docket Number: 6 Div. 369
• Citation: 353 So.2d 67
• Parties: R. D. EDDY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 67

353 So.2d 67

R. D. EDDY, alias v. STATE.

6 Div. 369.

Court of Criminal Appeals of Alabama.

Dec. 20, 1977.

Jesse W. Shotts, Birmingham, for appellant.

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

BOOKOUT, Judge.

Buying, receiving, concealing, etc. stolen property; sentence: two years imprisonment.

The State's evidence tended to show that on November 3, 1975, about 3:00 P.M., Joyce Scott's 1974 green Ford pickup truck was stolen from the parking lot of Woolco in Midfield. Mrs. Scott said the value of her truck on that date was "about thirty-five hundred dollars."

Approximately 7:00 P.M. on the day Mrs. Scott's truck was stolen, appellant brought a 1974 green Ford pickup truck to Auction City, U.S.A., in the Eastwood Mall area of Birmingham in Jefferson County. Appellant there sold the truck to Gene Schmitt for $1,665.00. Schmitt, a used car dealer, took the truck to his automobile lot in Leeds, Alabama. During the night of November 4, 1975, the truck was stolen from Schmitt's lot.

Later in November of 1975, a green 1974 Ford pickup truck was found under water in a strip mine pit near Trussville in Jefferson County. The truck was raised on November 10 and taken to Glendale Farms near Trussville. It was heavily damaged while it was being removed from the pit. The authorities searched the vehicle on November 10 and 12 for serial numbers, but they had been obliterated. On November 17, Officer Thomas H. Cook found some wet charge receipts of Mackinaw's Service Station, Inc.

Officer Cook took the receipts to Joyce Scott who recognized them as gas tickets she had signed and placed in the ashtray of her truck. Six charge receipts were introduced into evidence. Five were charges to "Joyce Glenn," and one was to "Joyce Glynn." Four were signed by "Joyce Glenn" and two by "Wayne Glenn." Joyce Scott testified that she maintained a charge account at Mackinaw's in her maiden name, "Joyce Glynn," even after she married. She acknowledged that her signature was on the receipts. Scott also said she allowed her brother, Wayne Glynn, to charge gasoline on her account. She testified that he had given her the two receipts that were signed by him and that she had placed them in her truck's ashtray with her other charge receipts.

Joyce Scott identified the truck, which was removed from the strip mine pit, as the one taken from her. The truck taken from the pit met the general description Scott gave of her truck. Scott based her identification primarily on glue in the shape of a footprint she said was left from an orange footprint shaped sticker which was on her dashboard, a dent in the back of the truck which according to her was from when her husband hit "the steps", and "skint places" on the back of the truck which she said were due to the putting on and taking off of a wood "camper". However, Scott testified that the truck she identified was different from hers in the following major respects: it had whitewall tires rather than the blackwall tires which were on her truck; the truck had a different license tag; it appeared to have been waxed; and the truck had been "wrecked," while her truck had not been damaged except for the dent.

During Scott's testimony, five photographs were admitted into evidence. Four showed the truck which was removed from the strip mine pit and one showed Joyce Scott with her truck. A comparison of the photograph of Scott's truck and the photographs of the truck taken from the strip mine pit shows that each truck depicted was a Custom, F-100, Ford pickup truck of the same shade of green.

The truck taken from the strip mine pit was identified by Gene Schmitt as the one appellant sold to him and which was stolen from his Smitty's Auto Sales lot. The truck which was found fit the general description given by Schmitt of the truck appellant sold to him. Schmitt saw the truck before it was damaged, while it was being removed from the strip mine pit, and after it was removed. It had the same license tag as the truck appellant sold to Schmitt and a Smitty's Auto sticker Schmitt had placed over a Lonnie Russell sticker. Joyce Scott's truck was bought from the Lonnie Russell Ford dealership. The truck recovered from the pit had whitewall tires and according to Schmitt " . . . still had the wax on it." Schmitt said he replaced the tires on the truck he bought from appellant with "port-a-wall tires" and had the truck cleaned. According to Schmitt he noticed, as the truck was being cleaned, that it had a little dent in the back of the cab on the right side and that it had had a camper on it. However, he observed no glue on the dashboard and stated he normally did not clean the ashtrays of vehicles he was preparing for resale.

Schmitt testified, without objection, that the license tag on the truck he bought from appellant was bought for Joel McCumby and that William Brooks signed for it. He said the man, apparently at the Jefferson County Courthouse, with whom he had a telephone conversation, told him the purchaser of the tag originally got a "car tag" then returned it for a "truck tag." Schmitt was also told that the man who purchased the tag said he got the truck from the Phenix City Auto Auction and the truck had a dealer's tag. Further, Schmitt testified, without objection, that when he went to the address he was given for McCumby, " . . . one of the neighbors said that Mr. McCumby was an old man and was in a nursing home or a mental institution or something." Also without objection, Schmitt testified that the "motor or serial number", on the bill of sale he received for the truck, was for a Ford pickup truck which was originally sold in Tennessee. According to Schmitt, Lonnie Russell Ford was not in Tennessee.

After the State rested, the defense moved to exclude the evidence and for a directed verdict; both motions were overruled.

Harland Bruce Dean, a half-owner of an automobile lot in Tarrant City, testified, for the defense, that appellant brought a dark green 1974 Ford "custom" pickup truck to his lot on a Friday during the last of October or before November 11, 1975. He said the truck was "pretty close to the color and the year" of the truck shown in the four pictures of the truck recovered from the strip mine pit. However, Dean admitted he could not tell if it was the same pickup truck depicted in the pictures.

Defense witness, Diane Fatia, said she saw appellant driving a dark green 1974 Ford pickup truck twice during a period of a week or five days around Halloween or the first week of November, 1975.

Kelsey Steadman, the custodian of the Jefferson County Department of Revenue records of vehicle license tag receipts, testified, for the defense, that the tag receipt for the tag found on the truck recovered from the strip mine pit was issued on October 24, 1975. The receipt showed Joel McCumby as the supposed owner, and that a William Brooks bought the tag for McCumby and signed for it. Also, the receipt indicated the vehicle the tag was issued for was a 1974 Ford, "PU F-100." Steadman also testified that on October 24, 1975, one could simply write a bill of sale and obtain a tag based on the information in it.

Appellant, R. D. Eddy, testified in his own behalf. He denied knowing the truck was stolen and contended he purchased the "pickup Ford" from Joel McCumby on October 28, 1975, for $1,500.00, cash. Appellant testified he did not know McCumby, whom he stated identified himself by way of a driver's license and from whom he obtained a bill of sale, which was admitted into evidence. Eddy admitted he sold the truck to Gene Schmitt at the "Eastwood Mall Auction" on November 3, 1975.

Gene Schmitt, when recalled as a rebuttal witness, testified that he went, after the truck was taken from his lot, to appellant's address, as shown on the bill of sale he received at Auction City, U.S.A., and found a vacant house. Further, Schmitt stated, without objection, that when he tried to call the appellant's telephone number as shown on the bill of sale he was told " . . . the number was disconnected, out of operation or something. No answer."

Bobbie Williams, a rebuttal witness for the State, testified that she rode with Joyce Scott on numerous occasions in her "1974 custom F-100," including November 3, 1975, "the same day the truck was missing." She identified the truck recovered from the strip mine pit as the one Joyce Scott had before November 3, 1975.

I

The indictment followed T. 15 § 259, Code of Alabama 1940, Recomp.1958, Form 91. It alleged the truck was " . . . the personal property of Joyce Scott. . . ." During the trial in a motion to dismiss the case and later in a motion for new trial, which were both overruled, the appellant maintained there was a fatal variance between the indictment and proof. He contended the evidence showed Joyce Scott's husband was the owner of the truck, and not Joyce Scott, as alleged in the indictment. Appellant now raises this point on appeal.

During the trial the following indicia as to the ownership of the truck were produced:

(1) Joyce Scott's testimony that her and her husband's money was used to make the down payment and payments on the truck.

(2)(a) A "CERTIFICATE OF INSURANCE CREDIT LIFE CREDIT DISABILITY from Ford Life Insurance Company" on Artis Edward Scott, Joyce Scott's husband.

(b) A "FINANCING STATEMENT UCC 1" from Ford Motor Credit Company which shows Artis Edward Scott and Joyce Scott as debtors on the truck.

(c) A "NOTE SECURITY AGREEMENT INCLUDING LOAN STATEMENT AND DISCLOSURES REQUIRED BY STATE AND FEDERAL LAW" which shows Artis Edward Scott's name typed at the top under the heading "NAME (BORROWER(S))," was signed by Artis Edward Scott as the borrower under an insurance notice, and signed by Artis Edward Scott and Joyce Scott at the bottom of the instrument as borrowers.

(3) The 1974 and 1975 license tag receipts for the truck were in the name of A. E. Scott, but Joyce Scott said she "went...