Gaskin v. State, 1 Div. 964

Decision Date25 February 1964
Docket Number1 Div. 964
Citation42 Ala.App. 290,161 So.2d 503
PartiesEddie Lee GASKIN v. STATE.
CourtAlabama Court of Appeals

Kenneth Cooper, Bay Minette, for appellant.

Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.

JOHNSON, Judge.

The appellant, Eddie Lee Gaskin, was indicted by the Grand Jury of Baldwin County for the offense of grand larceny in the felonious taking and carrying away from a storehouse one Motorola transistor radio, valued at $22.95, belonging to Gordon McLemore. After a trial by jury in the Baldwin County Circuit Court, the appellant was found guilty as charged and sentenced by the court to a term of three years in the penitentiary. Appellant's motion for a new trial was overruled and from the judgment of guilty, the appellant maintains this appeal.

On February 18, 1963, appellant, while driving in the company of his brother and Joseph Dale, an admitted felon, was arrested in Fairhope, Alabama. A Motorola transistor radio was found in the glove compartment of the car. Appellant contended, by way of explanation, that this radio was bought from 'Gordon's', a radio shop operated by Gordon McLemore, about a week before Christmas, 1962, and that he had lost the receipt which he had received for payment therefor. Policeman Randal testified that appellant voluntarily told him on February 18, 1963, at the city jail that he had bought the radio 'approximately a month ago' and Deputy Sheriff W. O. Garner testified that he also heard the appellant voluntarily state at the city jail that 'he bought the radio from this radio shop about a month prior to that'.

Mr. McLemore testified that his records did not indicate that the radio bearing this model and serial number had been sold and said that said radio was in his place of business when he took inventory of his stock on January 11, 1963. He testified that he did not know that the radio had been stolen until Officer Randal brought it to his store and asked him if he had sold it.

Irene Bradford, appellant's sister, and Ruth Bell Chaney, a friend, testified that they had seen appellant in the store on the day he claimed he bought the radio and that they saw a man behind the counter hand appellant the radio and give him a piece of paper which they assumed was a receipt. Ed Byther and Robert Pennington, two witnesses for the defense, testified that they had seen the appellant on Christmas day with a radio which looked like the one in question.

Joseph Dale testified that he and appellant's brother were with appellant at the time he was arrested on February 18, 1963 and that appellant had told him that he had taken the radio from Gordon's on Saturday, February 16, 1963.

Officer Randal of the Fairhope Police Department testified that appellant's sister, Irene Bradford, had told him that appellant had had the radio for a year. Appellant then testified that his sister must have had reference to another of his two radios, though she only mentioned one and though he couldn't remember the color of the other radio.

The appellant lists three assignments of error, which we shall deal with separately.

Assignment of Error No. 1 is as follows:

'Probable prejudice for any reason disqualifies jurors and, of course, the same reason would be applicable to the judge. In the instant case, the attorney for the defendant drew the Court's attention to the fact that the jurors had just previously heard certain matters in another case (State vs. Earlie Lee Gaskin, 1st Division, No. 963) in which the Defendant Eddie Lee Gaskin's name was mentioned in connection with the crime. And moreover, the jury hearing Earlie Lee Gaskin's case had brought in a verdict of guilty, and the Court had sentenced Earlie Lee in the presence of the jurors to be selected to hearing the instant case. Certainly this is probable prejudice for the jury hearing Eddie Lee Gaskin's case. The Court's manner in saying 'you can't get another one', refering to the defense attorney's request for another venire, was equally prejudicial against the defendant.'

This contention was raised in this court in the case of Mann v. State, 33 Ala.App. 115, 30 So.2d 462, Cert. den. 249 Ala. 165, 30 So.2d 466. In the Mann case, the challenged jurors had in fact heard testimony in previous cases in which Mann himself had been on trial which gave rise to a more serious question upon which to charge error than that here taken by appellant. In that case, the court said:

'The court did not err in overruling appellant's challenge for cause directed toward certain jurors who had been in the court room and heard the testimony in cases similar to the case against this appellant. Such situation is not a ground for challenge, and the ruling of the trial judge, in the absence of gross abuse, which is not here evident, will not be disturbed. Sandlin v. State, 19 Ala.App. 583, 99 So. 784; Cline v. State, 20 Ala.App. 578, 104 So. 347; Sharp v. State, 23 Ala.App. 457, 126 So. 895; Davis v. State, 24 Ala.App. 190, 132 So. 458; McCleskey v. State, 28 Ala.App. 97, 179 So. 394.'

In our opinion, there was no abuse of discretion in the case at hand. The veniremen were asked by the judge if anything that they had heard would prejudice their verdict. No affirmative replies were made by any of the veniremen to this interrogation from the court. No error was here committed by the trial court. Mann v. State, 33 Ala.App. 148, 30 So.2d 738.

Assignment of Error No. 2 is as follows:

'Proof of charge as set forth in the indictment must be made by the State. In this case the State charged the defendant with feloniously taking and carrying away, from a storehouse, (italics added) one Motorola transister radio of the value of $22.95. The definition of a 'storehouse' is defined in Black's Law Dictionary, Third Edition, as 'a building for the storage of grain, foodstuffs, etc.' In the case of Jefferson vs. State [100 Ala. 59, 14 So. 627], supra. Chief Justice Stone defined a 'storehouse' as 'a building for the storage of grain, foodstuffs, or goods of any kind; a magazine; a repository; a warehouse; a store'. In the present case there was no allegation by the State that the radios were kept in any building where they were 'for use, sale, or deposit;' instead, one reads the indictment to mean a place of repository--not of sale. Yet the facts, by both the State and the defendant, that the radio came from a place where it was kept 'for use, sale, or deposit,' a store, necessitated that the State prove the radio to have a value of Twenty-five dollars, or more, and this the State failed to do.'

We here find no variance since under the very definition quoted by the appellant the word 'storehouse' means 'store' among other things. "Storehouse' is 'a house in which things are stored; a building for the storing of grain, food stuffs, or goods of any kind; a magazine; a repository; a warehouse; a store." Jefferson v. State, 100 Ala. 59, 14 So. 627. There was no variance here.

Appellant contends in the last sentence of this assignment of error that the facts made it necessary that the State prove that the alleged stolen property was of the value of...

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5 cases
  • Dunaway v. State
    • United States
    • Alabama Supreme Court
    • May 3, 1973
    ...33 Ala.App. 148, 30 So.2d 738; Mann v. State, 33 Ala.App. 115, 30 So.2d 462, cert. den. 249 Ala. 165, 30 So.2d 466; Gaskin v. State, 42 Ala.App. 290, 161 So.2d 503. 'We find no abuse of discretion In application for certiorari, defendant asserts that the holding expressed in the foregoing s......
  • Dunaway v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 6, 1973
    ...33 Ala.App. 148, 30 So.2d 738; Mann v. State, 33 Ala.App. 115, 30 So.2d 462, cert. den. 249 Ala. 165, 30 So.2d 466; Gaskin v. State, 42 Ala.App. 290, 161 So.2d 503. We find no abuse of discretion Conviction of the offense Sub judice was obtained under Title 14, Section 174, Code of Alabama ......
  • Smith v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 27, 1981
    ...409 So.2d 927 ... Gloria Jean SMITH ... 3 Div. 378 ... Court of Criminal Appeals of Alabama ... Oct. 27, 1981 ... Section 38-4-7 were repealed by the new Criminal Code, effective January 1, 1980. See Table I of Title 13A ...         It is apparent that ... ...
  • Steidl v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 25, 1969
    ...House unabr., p. 1402). Cases bearing on this problem of definition are Jefferson v. State, 100 Ala. 59, 14 So. 627; Gaskin v. State, 42 Ala.App. 290, 161 So.2d 503. See also Hagan v. State, 52 Ala. 373; Green v. State, 68 Ala. 539; Henry v. State, 39 Ala. 679; Moore v. State, 40 Ala. 49; C......
  • Request a trial to view additional results

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