Hannon v. State

• Decision Date: 14 November 1948
• Docket Number: 5 Div. 267.
• Parties: HANNON v. STATE.
• Court: Alabama Court of Appeals

38 So.2d 26

34 Ala.App. 173

HANNON v. STATE.

5 Div. 267.

Alabama Court of Appeals

November 14, 1948

Reneau & Reneau, of Wetumpka, for appellant.

A A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

The following charges were refused to defendant:

'4. The court charges the jury, that if there is one single fact proved to the satisfaction of the jury which is inconsistent with defendant's guilt, this is sufficient to raise reasonable doubt of his guilt, and the jury should acquit.'

'8. The court charges the jury that each and every one of you is entitled to have his own conception of what constitutes a reasonable doubt of the guilt of this defendant; that, before you can convict this defendant, the evidence must be so strong that it convinces each juror of defendant's guilt beyond all reasonable doubt; and, if, after a consideration of all the evidence, a single juror has a reasonable doubt of defendant's guilt, then you cannot find defendant guilty.'

CARR Judge.

The accused is charged under an mdictment containing counts of grand larceny and burglary. The jury returned a general verdict of guilt. When this is the situation the verdict will be referred to a good count which is supported by the evidence. Wiggins v. State, 244 Ala. 246, 12 So.2d 758.

There are not any questions presented for our review which relate to rulings during the progress of the introduction of the evidence.

The prime inquiry centers around the action of the trial court in denying the general affirmative charge to the defendant.

On this account we will delineate the tendencies of the evidence in some detail.

Without dispute an iron safe weighing about 480 pounds, with its contents, was taken from the storehouse of Mr. Harden. The circumstances under which it was taken clearly establish that there was a breaking within the purview of the statute relating to burglary. The crime occurred during the nighttime. Mrs. Collier, who lived just across the street from the burglarized building, testified that about 2 A. M. she observed a man 'putting up the back of this little gate to the truck * * * It was a pick up truck.' She saw the truck leave and go in the direction of Wetumpka.

The next morning the officers and others observed, near the front entrance to the building, tracks of a vehicle. Mr. Harden described the tracks as follows:

'There were tire prints and they were very plain and you could even tell the type, the type of tire impress. You could tell that this automobile or whatever it might have been had stopped at this portion here. Those tires were very plain. They were three practically new tires, if not new, and one tire wasn't * * * one tire had a split in the tread where the tread was gone. It was very plain and you could even tell that those tires were general tire treads which is an unusual tire for this part of the country. Of course, there are some here but not too many of them because they are a high priced tire. They are a six inch tread and they are very easy to tear, that is a general tire tread. On the other tire, the slick tire, it had a slit in it I would say eight inches long which was showing too, and very plain * * *'

The safe was later found in a wooded area several miles distant from the store. The contents had been taken after the combination lock had been broken. The safe had been previously painted a black color, and it was observed that portions of its surface contained scratches and broken places to the extent that some of the paint was missing. The car or truck tracks at this location were plain and easy to observe and were found to be in every respect similar in description to those seen at the store building.

The defendant lived with his father in a dwelling in the near vicinity of Mr. Harden's place of business. He had visited the store from time to time. In fact, his wife had formerly clerked for Mr. Harden.

The father of the defendant owned a Dodge pickup truck. It appears that the accused had the privilege to use the truck at will. His father did not drive at all. According to the testimony of the appellant and his father, when the vehicle was not in use it remained parked in the yard at the back of their home. The ignition key was left hanging to a nail in the rear room of the house.

About a week after the burglary this truck was seen in its accustomed parking place by an employee of Mr. Harden. The tires were observed and the vehicle was taken in custody by the sheriff.

Without detailing the evidence, it is accurate to state that the witnesses described the treads of the tires of the possessed truck to be similar and the same in character as the impressions found both at the store and the wooded section.

Photographs were taken of these tires, and we have these pictures before us. The evidence also disclosed that some flakes of black paint were found in the bed of the truck. Impressions or indentations were seen in the bottom of the bed. These were described in detail. In measurement these corresponded with some dimensions at the base of the safe.

The evidence in defendant's behalf tended to show that the truck had been in general use for several years, during which time stoves, junked automobile parts, other iron scraps wood, and various articles had been hauled.

It appears that among the articles missing from the safe were a 'feeler gauge' and 'cotter key.' The gauge is a small metal plate about 3 inches in length and 1/4 inch in width. It is of the kind that is in general use by mechanics, with which to time gasoline motors. A tool of this description and a cotter key were found among the trash in the body-bed of the truck. Mr. Harden was unable to testify positively that these articles were those that were in his safe. He could only state that in his opinion the feeler gauge was, because it was in every respect identical in appearance.

At about 12:30 on the night in question the appellant, Miss Betty Joe Hood, Mr. McDade and wife came to the latter's home in the Dodge pickup truck after spending most of the evening at some roadside place between Wetumpka and Montgomery. Upon arrival, all except the appellant went into the house, but Mr. McDade forthwith returned and rejoined the defendant at the truck. The appellant testified that the purpose of this second trip was to get a drink of whiskey at his father's home. It appears that the latter's dwelling was in the general vicinity and not very far from McDade's home.

Miss Hood testified that she and Mrs. McDade talked for about fifteen or twenty-five minutes and then retired and were soon asleep. She stated that MrDade came back alone later. She could not give the approximate time, but deposed that she was awakened and she knew 'he came back in that night.'

The effect of the defendant's father's testimony was that his son came home about twelve o'clock, midnight; that upon his arrival he sent him across the road to quiet some negroes who were creating a disturbance; that he was gone about forty-five minutes and then came in the house and went to bed; that his son remained at home the rest of the night.

The appellant testified to like effect and added...