Jones v. State

• Decision Date: 05 June 1979
• Docket Number: 6 Div. 958
• Citation: Jones v. State, 373 So.2d 1221 (Ala. Crim. App. 1979)
• Parties: Johnny JONES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1221

373 So.2d 1221

Johnny JONES v.STATE.

6 Div. 958.

Court of Criminal Appeals of Alabama.

June 5, 1979.

Rehearing Denied July 17, 1979.

Al L. Vreeland, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen., Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.

BOOKOUT, Judge.

Second degree burglary, grand larceny and buying, receiving and concealing stolen property; sentence: ten years imprisonment.

Around 7:30 a. m. on November 3, 1976, Mrs. Doris Hardy locked her mobile home and departed for work.She returned around 5:00 p. m. and found that her residence had been burglarized.A collection of valuables were missing which included: silver ingots valued at $30 each, old coins and currency valued at $1,800, jewelry and watches valued at $5,000, and a handmade pillowcase valued at $10.

Between 10:00 and 11:00 a. m. that same day, the appellant accompanied by one Kenneth Hallman and an unidentified companion came to the mobile home of Jimmy Wilson who dealt in stolen merchandise.They asked Amy Atchison, Wilson's co-habiting girl friend, if they could speak with Wilson.Appellant was carrying the pillowcase which he emptied onto a bed revealing the items stolen from the Hardy residence.Wilson informed the appellant and Hallman that he did not want the jewelry and advised them to get rid of it.They departed, leaving the coins with Wilson.Wilson then gave Amy Atchison the pillowcase and told her to get rid of it.She hid it and, after moving out of Wilson's residence about a week later, she returned the pillowcase to Mrs. Hardy and informed on the others.

Shortly after the appellant and his companions had left Wilson's mobile home, Wilson had Atchison call one A. L. Kropp, who later came by around 7:00 p. m. and appraised the stolen goods for Wilson.The appellant and Hallman returned a short time later without their previous companion, and Kropp began negotiating with them for the purchase of the valuables.After haggling over a price for a while, Kropp paid them $300 for the stolen goods, and the two departed.Wilson immediately reimbursed Kropp the $300 for the purchase, and Kropp then departed and Wilson kept the goods.At Wilson's direction, Amy Atchison put the stolen goods in a paper bag and delivered them to Wilson's mother.Amy testified that she followed Wilson's orders only because she was afraid of him.

I

The appellant contends that both Amy Atchison and A. L. Kropp were accomplices of the appellant and, therefore, their uncorroborated testimony was insufficient to support the conviction pursuant to Title 15, § 307,Code of Ala. 1940(now § 12-21-222,Code of Ala. 1975).

Specifically, the appellant contends that the trial judge erred in charging the jury that as a matter of law Amy Atchison was not an accomplice.He further contends that his written requested charge concerning the necessity for corroborating the testimony of an accomplice was erroneously refused by the trial judge.

The Supreme Court of Alabama in Ex parte State(re: Samuel Yarber v. State), Ala., --- So.2d ----(Ms. July 14, 1978, SC 2622), held that in cases where the issue of whether or not a witness is an accomplice is a Disputed fact, the issue must be presented to the jury.However, we find that Yarber does not apply in the instant situation.It is clear from the evidence that neither Atchison nor Kropp was implicated in the burglary or the larceny.The only claim as to their complicity would relate only to the charge of buying, receiving or concealing stolen property (referred to by the trial judge and in the judgment entry only as "receiving and concealing stolen property").

The trial court was correct in ruling as a matter of law that Amy Atchison was not an accomplice.The same is true of Kropp.It is the appellant's initial reception or concealment of stolen goods which is the subject of the instant charge, not his subsequent transfer or sale of the goods to Kropp or Wilson.Thus, neither Kropp nor Amy Atchison was an accomplice in the original acquisition of the stolen property by the appellant.The purchase of the stolen property by Kropp (for Wilson) and Amy Atchison's concealment thereof were separate and distinct from the appellant's initial reception of the goods which was "chronologically anterior" to Kropp's purchase.This case is controlled by Kyles v. State, Ala.Cr.App., 358 So.2d 797, cert. denied, Ala., 358 So.2d 799(1978), andPatterson v. State, 45 Ala.App. 229, 228 So.2d 843(1969).Since neither Kropp nor Atchison was subject to joint indictment with the appellant on the instant charge, they were legally prevented from being accomplices for the purpose of the corroboration statute and, therefore, the written requested charge concerning corroboration of an accomplice's testimony was properly refused.Kyles, supra.

II

The appellant was charged with three distinct crimes set out in three separate counts in the indictment.The trial court charged the jury that, if they were convinced beyond a reasonable doubt and to a moral certainty that the appellant was guilty of all three offenses, they should return the following verdict: "We the jury find the defendant guilty as charged in the indictment."The jury returned such a verdict.However, in formally pronouncing sentence, the court stated:

"Having nothing further to say, it is the judgment of the Court that you are guilty of Grand larceny as charged in the indictment and the Court fixes your punishment at imprisonment in the penitentiary of Alabama for a period of ten years. . . ."(Emphasis supplied.)

On the other hand, the judgment entry recites:

". . . It is, therefore, considered by the Court and it is the order and judgment of the Court that the defendant, JOHNNY JONES, is guilty of BURGLARY IN SECOND DEGREE, GRAND LARCENY AND RECEIVING AND CONCEALING STOLEN PROPERTY as charged in the indictment."

It is well settled that recitals in the judgment entry import absolute verity Unless contradicted by other portions of the record.Twyman v. State, 293 Ala. 75, 300 So.2d 124(1974).Here, the court reporter's transcript conclusively shows that the trial judge pronounced the appellant guilty of only grand larceny.

The unexplained possession of recently stolen goods will support an inference of burglary and of larceny if there is also proof of breaking and entering and theft of the goods so connected in time as to permit the further inference that the larceny was the product of the breaking and entering.Goode v. State, Ala.Cr.App., 337 So.2d 1364(1976);Stokes v. State, 54 Ala.App. 112, 305 So.2d 387(1974).The inference which may be drawn from such possession is one of fact which must be submitted to the jury.In the instant case, there was direct evidence supporting a charge for buying, receiving or concealing stolen goods.The appellant could likewise have been convicted on the burglary and grand larceny charges by inference.A general verdict of guilty on a multiple count indictment is valid where the evidence would sustain a verdict of guilty under each count and the sentence imposed is no greater than could have been imposed on any one of the counts.Mayes v. State, 56 Ala.App. 456, 322 So.2d 746(1975).

The verdict of the jury was proper; however, the case must be remanded...