Harper v. State, 2 Div. 288

CourtAlabama Court of Criminal Appeals
Writing for the CourtLEIGH M. CLARK
Citation395 So.2d 150
PartiesBernard HARPER v. STATE.
Docket Number2 Div. 288
Decision Date20 January 1981

Page 150

395 So.2d 150
Bernard HARPER
v.
STATE.
2 Div. 288.
Court of Criminal Appeals of Alabama.
Jan. 20, 1981.
Rehearing Denied Feb. 24, 1981.

Page 151

William T. Faile of Morris & Faile, Selma, for appellant.

Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Spec. Asst. Attys. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant (defendant) was found guilty by a jury under the second count of an indictment charging him with buying, receiving, concealing or aiding in concealing "Nineteen (19) 10/20 tires and Eight (8) lug blocks and accessories ... of the total and combined value of, to-wit: $3800.00; the personal property of Jimmy Henderson, knowing the same had been stolen, and not having the intent to restore it to the owner." In the first count he was charged with larceny of the property. The court fixed his punishment at imprisonment for ten years and sentenced him accordingly.

That the property had been stolen there can be no doubt. The owner, Mr. Jimmy Henderson, a farmer living and farming at Prairie, Alabama, in Wilcox County, said that he was called to his farm on Monday morning, April 9, 1979, to find that his two soybean trailers had been jacked up, that nineteen tires and some of "the nuts and cleats that hold the tires on the trailer were gone." He said the value of each tire and attached rim was "between a hundred and fifty and two hundred dollars." He said he next saw the stolen property in two pickup trucks at the Marengo County Jail at Linden.

There was undisputed evidence that about midnight of April 8-9, 1979, two pickup trucks were halted by a deputy sheriff of Marengo County at Nanafalia on Highway 10 in Marengo County. The officer noted that the trucks were loaded with tires. One truck was being driven by defendant, the other by defendant's son, Preston Leon Harper. In the truck with the defendant was defendant's wife. The officer contacted the Marengo County Sheriff who told him "to bring them to the Marengo County Jail." The record shows that the particular officer and several other officers had been maintaining a lookout for the defendant and his son and trucks driven by them.

A large part of the transcript of the proceedings consists of hearings out of the presence of the jury in connection with defendant's objections to, or motion to suppress, testimony pertaining to what defendant said subsequent to his being stopped on the highway and testimony as to the contents

Page 152

of the truck. A major ground for the objections and the motion was that there had been an illegal arrest of defendant, in violation of his rights under the Fourth Amendment to the Constitution of the United States. The same constitutes the essence of appellant's first two contentions for a reversal. We will discuss such contentions later.

Perhaps the clearest portrayal of the circumstances pertaining to the alleged crime is to be found in the testimony of the only witness for defendant, his own son who was driving the other truck. He testified that at the time of the trial he was then in the Mississippi State Penitentiary, serving a seventeen-year sentence for three cases of burglary in Lauderdale County, Mississippi. He testified in part as to the crime charged in this case:

"Q. Do you recall coming to Alabama back in April of 1979 and you brought with you your mother and your father?

"A. I do.

"Q. And do you recall what day of the week that was?

"A. It was on a Sunday.

"Q. Now, at that time where were you living?

"A. Route 1, Toomsuba, Mississippi.

"Q. And where was your father living?

"A. Route 1, Toomsuba, Mississippi.

"Q. How far did you live from your father?

"A. About a quarter of a mile.

"....

"Q. Did you make any plans to come to Wilcox County on that day?

"A. I did.

"Q. And what were those plans?

"A. I had a call Sunday afternoon from a man who had been buying tires from me. And he asked me to meet him in Meridian. And I met him in Meridian. And he said he needed some tires.

"Q. Did he say what kind of tires he needed?

"A. He was in the trucking business. He had been buying tires from me before. He said some of his trucks were getting in pretty bad shape on tires and he wanted to know did I have any.

"Q. What did you tell him?

"A. I told him no that I didn't at the present time. And he wanted to know how long it would take to get some.

"Q. And what did you tell him?

"A. I told him I thought I could get him some pretty quick.

"Q. Did he indicate to you that he had to have them pretty quick?

"A. He did. He said he needed them right then.

"Q. After he told you this what did you do?

"A. I told him I would try to have them for him the next morning. That I knew where I could probably get some and he had the cash money waiting for me he said just as soon as I gave him the tires he would pay me for them.

"....

"A. All right. After I had done talked to the man and had come back to my house I loaded up the tire tools and jacks and blocks and stuff and went to my father's house. My mother and father were sitting in the back yard with my brother and his wife. And I walked up and my brother and his wife were getting ready to leave. And they lived right across there from my father there so they were just going to walk over to their house. And I told my father I needed him to run with me to haul a few truck tires.

"Q. Did you tell your father where you were going?

"A. No.

"Q. And what did he say to you when you told him you needed him?

"A. He said he didn't feel very good and didn't feel much like driving. I told him well he wouldn't have to be gone all that long. And we probably would be back pretty early if we leave early.

"Q. And what kind of health is your father in?

"A. He just had a couple of major operations for intestinal blockage in his stomach.

Page 153

He was a diabetic and he was having trouble getting his stomach to heal up where they had put stitches in his stomach. And really he wasn't supposed to be driving that much.

"Q. And did he have his own vehicle?

"A. He did. He had a pickup that I helped him buy."

He further testified that with his father and mother following him, according to his instructions, and after he had had the two trucks supplied with gasoline, they traveled into Alabama, passed through Sumter County, Choctaw County and Marengo County, and "there was a tool shed fairly close to where these tires were. These two trailers were parked under a shed." In his further testimony, the witness said that he had his father park the truck he was driving somewhat out of sight of the place where the trailers and shed were, that he didn't want his mother and father "to know I was going to break these tires down and steal them." He said he told his father that he was going "to meet a man to pick up these tires," that it didn't take him long to jack up the trailers and take the tires off, that he put nine of them in his pickup, took them to the other truck, switched trucks with his father, went back and put ten tires in his father's truck, then returned to the other truck and "told them to follow me." According to his testimony, the two trucks then returned over the same route and came back into Marengo County, when the following occurred:

"A. When we got near Nanafalia we met a Sheriff's car. And we were near Compton's Store. So I pulled over at the store and the Sheriff's car had turned around and followed us. And whenever I stopped there they got out and arrested us. No, excuse me, I'm wrong there. It was raining. And they got out and wanted identification, driver's licenses. They didn't say we were under arrest at that time. It was raining real hard and they got back in the car and I guess they called for help because it wasn't but just a few minutes until there were several Sheriff's cars and deputy cars surrounding us and the store.

"Q. They stopped you with a blue light?

"A. Right."

According to further testimony of the witness, one of the officers asked for his driver's license and "said something about the tires on my truck." He told the officer he had bought them, that then "it really got raining hard so he said just get back in the truck. In other words, we were going to let the rain blow over." His father got out of his truck and into the truck the witness was driving and asked the witness what was going on. He said he told the defendant to tell the officers that "we bought the tires in Montgomery." The officers questioned the witness "maybe ten or 15 minutes as to where the tires had come from" and what he was doing with them, and he told them that he "bought the tires from a man I had met in Montgomery." After the questioning, the witness, his father and mother, went with one or more of the officers to the Marengo County Jail at Linden and remained there the rest of the night. About 9:00 A.M. the next morning, according to the witness, the officers let him know that they had not learned that the tires had been stolen and were in the process of arranging for some papers to hold the tires but release the witness, his father and mother. However, soon after 9:00 A.M., the officers told them that they had just learned that the tires were stolen. Charges were then made against the witness, his father and mother for their participation in the theft of the tires.

It can be seen from the testimony of the defendant's son, as to which there is little material conflict, that it is difficult to determine the precise moment of defendant's arrest. However, it is to be reasonably concluded, we think, that whatever the precise time thereof, there was probable cause for believing, and that the officers did believe, that defendant had participated in the crime of stealing or of buying or receiving stolen property. According to the testimony of officers, law enforcement personnel of at least five counties in West Alabama were aware of the repeated, continuous

Page 154

and ever potential criminal conduct of defendant's son, and to some...

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15 practice notes
  • Boggan v. State, 6 Div. 32
    • United States
    • Alabama Court of Criminal Appeals
    • May 22, 1984
    ...statements as indicating consciousness of guilt. Cumbo v. State, supra; Hayes v. State, 395 So.2d 127 (Ala.Crim.App.), cert. denied, 395 So.2d 150 (Ala.1981). We find no error in the jury's verdict of The judgment of the trial court is due to be, and is hereby, affirmed. AFFIRMED. All the J......
  • Yarber v. State, 6 Div. 351
    • United States
    • Alabama Court of Criminal Appeals
    • October 27, 1981
    ...871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). See also Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981), where the deceased was seen dancing with the defendant some fifteen minutes before being last seen alive by her friends. Additiona......
  • Jelks v. State, 6 Div. 632
    • United States
    • Alabama Court of Criminal Appeals
    • December 29, 1981
    ...jury without objection. Crenshaw v. State, 205 Ala. 256, 87 So. 328; Hayes v. State, Ala.Cr.App., 395 So.2d 127, certiorari denied, Ala., 395 So.2d 150. The third error complained of by the appellant in his brief is that the trial court committed reversible error when it marked defendant's ......
  • Ware v. State, 2 Div. 302
    • United States
    • Alabama Court of Criminal Appeals
    • June 23, 1981
    ...sum of the preceding testimony and did not cause reversible error. Hayes v. State, 395 So.2d 127, 147 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981). The admission of cumulative evidence, even upon an undisputed fact, is not prejudicial error. Robinson v. State, 342 So.2d 1331 (A......
  • Request a trial to view additional results
15 cases
  • Boggan v. State, 6 Div. 32
    • United States
    • Alabama Court of Criminal Appeals
    • May 22, 1984
    ...statements as indicating consciousness of guilt. Cumbo v. State, supra; Hayes v. State, 395 So.2d 127 (Ala.Crim.App.), cert. denied, 395 So.2d 150 (Ala.1981). We find no error in the jury's verdict of The judgment of the trial court is due to be, and is hereby, affirmed. AFFIRMED. All the J......
  • Yarber v. State, 6 Div. 351
    • United States
    • Alabama Court of Criminal Appeals
    • October 27, 1981
    ...871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). See also Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981), where the deceased was seen dancing with the defendant some fifteen minutes before being last seen alive by her friends. Additiona......
  • Jelks v. State, 6 Div. 632
    • United States
    • Alabama Court of Criminal Appeals
    • December 29, 1981
    ...jury without objection. Crenshaw v. State, 205 Ala. 256, 87 So. 328; Hayes v. State, Ala.Cr.App., 395 So.2d 127, certiorari denied, Ala., 395 So.2d 150. The third error complained of by the appellant in his brief is that the trial court committed reversible error when it marked defendant's ......
  • Ware v. State, 2 Div. 302
    • United States
    • Alabama Court of Criminal Appeals
    • June 23, 1981
    ...sum of the preceding testimony and did not cause reversible error. Hayes v. State, 395 So.2d 127, 147 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981). The admission of cumulative evidence, even upon an undisputed fact, is not prejudicial error. Robinson v. State, 342 So.2d 1331 (A......
  • Request a trial to view additional results

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