Johnson v. State

• Citation: 253 So.2d 344,287 Ala. 576
• Decision Date: 30 June 1971
• Docket Number: 8 Div. 426
• Parties: In re Roland JOHNSON v. STATE of Alabama. Ex parte Roland Johnson.
• Court: Supreme Court of Alabama

Page 344

253 So.2d 344

287 Ala. 576

In re Roland JOHNSON v. STATE of Alabama.

Ex parte Roland Johnson.

8 Div. 426.

Supreme Court of Alabama.

June 30, 1971.

William H. Rogers, Moulton, for petitioner.

William J. Baxley, Atty. Gen. and Richard F. Calhoun, Asst. Atty. Gen., for respondent, the State.

HARWOOD, Justice.

Among the grounds of the Petition for Writ of Certiorari was that the Court of Criminal Appeals did not follow the holding of this court in holding that the trial court 'did not err in denying the appellant's motion to exclude the evidence nor in denying the affirmative charge,' in that such conclusion is in conflict with Lang v. State, 252 Ala. 640, 42 So.2d 512, and the pronouncements in that case as to the measure of proof essential to convict a person charged with a felony, where the evidence presented is circumstantial. The facts in this case are undisputed. The appellant offered no evidence in the trial below. There being no dispute about the facts, we may go to the record for a more complete understanding of those features treated in the opinion of the Court of Criminal Appeals. Johnson v. State, 277 Ala. 655, 173 So.2d 824; Helms v. State, 270 Ala. 603, 121 So.2d 106; Southern Railway Co. v. Terry, 268 Ala. 510, 109 So.2d 919; Vardaman v. Benefit Ass'n of Railway Employees, 263 Ala. 236, 82 So.2d 272; Cranford v. National Surety Corp., 231 Ala. 636, 166 So. 721; Hood v. State, 230 Ala. 343, 162 So. 543.

In connection with the testimony of Mrs. Cleo Clark, the record shows that when she saw the two boys at Mrs. Bryant's automobile, neither being the appellant, she did not pay particular attention to them as she 'figured' they had come to repair Mrs. Bryant's automobile. She went into her house and later heard some 'blundering' at the automobile. We think a significant portion of Mrs. Clark's testimony was that it was 'after dinner,' between 2:30 and 4:00 P.M., that she observed the two boys at the automobile.

In chronological sequence the evidence shows that Mrs. Bryant's malfunctioning or nonfunctioning automobile was left in front of the Clark home around 9:00 A.M. When Mrs. Bryant returned to her automobile at 1:00 P.M., the battery had been taken from the automobile and it had been otherwise damaged.

Between 11:00 A.M., and noon on the day in question, Earl Clark had seen the defendant, his brother, and a McCaghren boy riding north in a truck on the road on which the Bryant automobile was parked. The truck was then between a quarter and a half mile from where the Bryant automobile was parked. He recognized the truck as belonging to Omie Johnson, the appellant's father.

The testimony of Omie Johnson and Chamness, the deputy sheriff, merely shows that a blue truck had been driven away from Omie Johnson's garage by some person and abandoned on a road in Lawrence County. Johnson did not know who had driven the truck off. When Johnson recovered his truck the battery from the Bryant automobile was in the truck.

Analysis of the state's evidence shows only that the appellant was observed in his father's truck with two other boys driving along a public road between 11:00 A.M., and noon on the day in question about a quarter to a half mile away from where Mrs. Bryant's automobile was parked, and the stolen battery was found in the truck.

Mrs. Cleo Clark's testimony is of little probative value in connecting the appellant with this offense. She testified that neither of the two boys she had very casually observed at the Bryant automobile was of similar size to the appellant, and she saw no other person at the Bryant automobile. Further, she testified that the two boys were observed by her 'after dinner' between 2:30 and 4:40 P.M.

No better statement of the doctrines of our cases, and we may add of the former Court of Appeals, may be found than that by Stone, J., in Ex parte Acree, 63 Ala. 234:

'The humane provisions of the law are, that a prisoner, charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof which the law requires.'

The only inference raised by the state's evidence in this case is that it was possible that defendant may have committed the offense with which he was charged. Beyond this possibility resort must be had to surmise, speculation, and guesswork to establish the appellant's criminal agency and connection with the offense charged. No rule is more fundamental or better settled by a myriad of cases of this court, and of the former Court of Appeals, than that a conviction cannot be predicated upon such bases. See 6 Ala.Dig., Crim.Law, k No. 560, for innumerable authorities enunciating this doctrine.

The appellant was due to have been granted in the trial court his motion to exclude the evidence, and to have had given his requested affirmative charge.

It is our view that the decision and judgment of the Court of Criminal Appeals is in conflict with the prior decisions of this court touching on the degree of proof required to sustain a conviction on circumstantial evidence. The judgment of the Court of Criminal Appeals is due to be reversed.

Reversed and remanded.

HEFLIN, C.J., and SIMPSON, COLEMAN, BLOODWORTH and McCALL, JJ., concur.

LAWSON, MERRILL and MADDOX, JJ., concur specially.

LAWSON, Justice (concurring specially).

We granted the writ of certiorari to review the decision and judgment of the Court of Criminal Appeals in the case of Johnson v. State, Ala.Cr.App., 253 So.2d 343.

The opinion of the Court of Criminal Appeals shows that a battery was stolen from the automobile of Mrs. Ethel Bryant sometime between 9:00 a.m. and 1:00 p.m. on July 9, 1969.

The battery was found in an old pickup truck which had been abandoned on a highway in Lawrence County. The truck belonged to Omie Johnson, the father of the defendant, with whom the defendant resided.

On the morning of July 9, 1969, the truck was driven away from Omie Johnson's garage by a person unknown.

Sometime between 11:00 a.m. and noon on July 9, 1969, the defendant in the trial court and two other boys were seen riding in the truck at a point one- quarter to one-half mile north of the place where Mrs. Bryant's car was parked when the battery was removed from it. The truck was being driven in a northerly direction away from the Bryant automobile.

An old blue pickup truck was observed as it stopped at the place where Mrs. Bryant's automobile was parked. Two boys were seen as they got out of the truck. Neither fitted the description of the defendant in the trial court. A third boy was not observed. The witness did not say, according to the opinion of the Court of Criminal Appeals, that she saw the boys get out of the truck before 1:00 p.m. on the day in question, the time when the loss of the battery was discovered. This witness, according to the opinion of the Court of Criminal Appeals, said that 'she was unable to testify as to the time she saw the boys, other than it was after dinner.' This statement, in my opinion, is not sufficient to support a finding that the witness saw the boys before 1:00 p.m. The evidence as delineated in the opinion of the Court of Criminal Appeals does not show what time the witness had dinner on the day in question and even if it did, the fact that the witness saw the boys sometime after dinner would not, as I have indicated above, justify a finding that she saw the boys prior to 1:00 p.m.

On certiorari here, we do not review findings of fact made by the Court of Criminal Appeals from the transcript of the record presented to it. Our function on certiorari is to review the rulings of that court to ascertain if it has correctly determined legal conclusions from facts found by it to exist in the record, or has misapplied the law to such facts. Lancaster v. State, 214 Ala. 2, 106 So. 617; Milazzo v. State, 238 Ala. 241, 189 So. 907; Parham v. State, 217 Ala. 398, 116 So. 418; Stallings v. State, 249 Ala. 1, 32 So.2d 233; Morrison v. State, 267 Ala. 258, 100 So.2d 746; Flournoy v. State, 270 Ala. 448, 120 So.2d 124; Farris v. State, 272 Ala. 278, 130 So.2d 58; Kozlowski v. State, 248 Ala. 304, 27 So.2d 818; Neely v. State, 207 Ala. 585, 93 So. 382; Ex parte Thaggard, 276 Ala. 117, 159 So.2d 820.

In Parham v. State, Supra, Mr. Justice Brown, writing for the court, said as follows:

'It is a settled rule that this court, upon certiorari, will review the Court of Appeals only on questions of law, and not upon the finding of fact or application of the law to the facts, or the application of the doctrine of error without injury, unless the facts are fully stated in the opinion of the Court of Appeals so that a review may be effected without an examination of the record filed in the Court of Appeals. Postal Tel. (Cable) Co. v. Minderhout, 195 Ala. 420, 71 So. 91; Birmingham So. R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339; Campbell v. State, 216 Ala. 295, 112 So. 902; Ex parte Steverson, 211 Ala. 597, 109 So. 912. This precludes a review of the Court of Appeals in dealing with the refusal of the affirmative charge where, as here, all the facts of the case are not stated in the opinion of the Court of Appeals.' (217 Ala. 399, 116 So. 418.)

In Rainey v. State, 245 Ala. 458, 17 So.2d 687, in an opinion written for the court by Mr. Justice Foster, it is said:

'Given the evidence as recited by the Court of Appeals, the question is, what is its legal effect? As on this appeal, that question is usually presented by a ruling in the trial court on a request for the affirmative charge. When we pass on the legal effect of the evidence as...