Kilpatrick v. State

• Decision Date: 21 February 1967
• Docket Number: 8 Div. 73
• Citation: 199 So.2d 682,43 Ala.App. 667
• Parties: Houston Kenneth KILPATRICK v. STATE.
• Court: Alabama Court of Appeals

Page 682

199 So.2d 682

43 Ala.App. 667

Houston Kenneth KILPATRICK v. STATE.

8 Div. 73.

Court of Appeals of Alabama.

Feb. 21, 1967.

Rehearing Denied March 14, 1967.

J. N. Powell, Jr., Decatur, for appellant.

Richmond M. Flowers, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.

CATES, Judge.

This appeal came on for submission on briefs without oral argument November 17, 1966.

Kilpatrick was charged by the Grand Jury in a true bill of stealing a 1964 model Cadillac worth $6,600.00, the property of Milton Peek. Code 1940, T. 14, § 331, as amended. He came on for trial December 8, 1965, on a plea of not guilty, was found guilty by a jury and the trial judge thereupon adjudicated him guilty of grand larceny.

Kilpatrick applied for probation. On January 4, 1966, the matter came on again. Kilpatrick withdrew his request for probation and the court, after allocutus, sentenced him to eight years in the penitentiary.

I. Facts

We paraphrase in substance the statement of facts in the appellant's brief:

Milton Peek testified that he has been in the automobile business in Decatur for some 32 years, and that during June, 1964, one Cadillac automobile belonging to him came up missing from his establishment. He testified as to the serial number of the car, and that the automobile was returned to him approximately two weeks later by the Decatur Police. He also testified that he did not know who took the car. (Peek valued the car at $6,686.70.)

Carl Young of the Huntsville Police Department testified that he saw appellant driving a 1964 white Cadillac on Highway 72 in Huntsville into the parking lot at King's Inn Motel. He also testified that the appellant was then arrested for theft of the Cadillac, but that he did not know that appellant stole the Cadillac.

Robert Owens of the Huntsville Police Department also testified that he saw the appellant drive a white Cadillac into the parking lot at King's Inn Motel, and that he was arrested shortly afterwards. He testified that he could not say that appellant took the car.

Joe Patterson, also a member of the Huntsville Police Department, identified two keys as being the ones in the Cadillac which appellant drove into the parking lot at King's Inn Motel. He testified that he did not know whether the car appellant was driving was stolen or not. He testified that he did not know who stole the car belonging to Mr. Peek.

The last witness for the State was Bobby Newsom, who testified that he turned a Cadillac over to Mr. Peek, but he did not testify that the serial number was checked to insure that the Cadillac returned to Mr. Peek was the same one which Mr. Peek testified was missing.

The appellant did not take the stand, and no witnesses appeared on his behalf.

The Attorney General's brief asked that the following be added:

'During the direct examination of Mr. Peek, the witness testified that the automobile which was returned to him was the one that was stolen from his car lot. He also testified that the automobile was stolen from his car lot on the night of June 4, and was returned to him around the 18th of the same month.

'During the direct examination of Sergeant Owen, he testified that appellant stated that he had never before seen the white Cadillac automobile; and that he had just driven into the motel parking lot to look it over.

'During the direct examination of Bobby Newsom, he testified that he delivered the Cadillac to Mr. Peek after he had examined it and checked the serial numbers.'

II. Presumption Arising from Possession

Pollock & Maitland, History of English Law, refer frequently to the 'handholding thief,' a related description of which is now encapsulated in the expression of one's being 'caught red handed.' See 2 Coke's Inst. 188.

In our modern law of larceny, we still recognize manucaption as a showing of theft. Wolf v. State, 41 Ala. 412; see also Bolling v. Kirby & Bro., 90 Ala. 215, 7 So. 914. Larceny being an offense against possession essentially is directed against not merely enjoyment or handling of a thing, but against the possessor's legal right to exclude others from interfering with his actual enjoyment or entitlement to enjoy.

In addition to 'actual' possession, we employ the term 'constructive' possession, an expression which is capable of causing confusion because 'possession' itself is a concept of a relation between a person and a thing vis a vis other persons, e.g., dominion and exclusion. However, here we can lay aside considerations of 'imperfect' possession. Blakeney v. State, 244 Ala. 262, 13 So.2d 430.

Viewed from verdict, Kilpatrick, in driving on U.S. Highway 72, Memorial Drive, and into the car park of the King's Inn at Huntsville was in 'complete, independent, and absolute possession and control of (the car), adverse to the rights of (Peek) therein.' Blakeney, supra (hn. 5).

The crux of this case devolves on whether this observed possession denotes stealing. By retroduction from June 18 to June 4, was the jury allowed too long a span of time?

In Maynard v. State, 46 Ala. 85, we find approval of the following charge:

'* * * 'if the defendant had possession of the horse said to have been stolen, and did not explain said possession, it was prima facie evidence of his guilt, and the jury might convict if they thought proper.' * * *'

This instruction was disapproved in White v. State, 72 Ala. 195, because it omitted 'recent.'

The watch stolen in White, supra, disappeared in April, 1881, and it reappeared 'shortly afterwards,' in the same month, when the defendant was trying to sell it. The opinion remarks:

'It is not every or any possession of stolen goods by a party, which will authorize the inference of his complicity in the crime of larceny or burglary; nor, in fact, every such unexplained possession, although it may be exclusive, as opposed to the idea of a joint possession with others. Another element is necessary in order to constitute a guilty possession. It must be recent, or soon after the commission of the offense to which it has reference.--Henderson v. The State, 70 Ala. 23 (45 Am.Rep. 72); 1 Greenl.Ev. § 34; Whart.Cr.Ev. § 758; Clark's Cr.Dig. §§ 97, 145, 635; Murray & Bell's Case, 48 Ala. 675; Crawford's Case, 44 Ala. 45.

'What is meant by 'recent,' is incapable of exact or precise definition, and the term has been said to vary, 'within a certain range, with the conditions of each particular case.' Whart.Cr.Ev. § 759. There are cases, no doubt, so clear in nature, and undisputed in facts, as that the court could pronounce the possession recent, as matter of law; but the question is usually one of fact for the determination of the jury. * * *'

In the breaking and entering in Gray v. State, 19 Ala.App. 315, 97 So. 124, there was an overlapping period. The owner missed his shirts in September. The search which brought them to light was some time between the 21st and 28th of that month.

Seemingly, this period of time was considered appropriate for the jury to decide as being 'recent' or not.

In Jackson v. State, 167 Ala. 77, 52 So. 730, from November, 1906, to sometime before Christmas, 1906, was for the jury to consider as recent or not. The opinion cites, Thomas v. State, 109 Ala. 25, 19 So. 403, and 1 Mayfield's Dig. 582, et seq.

While a current year's white Cadillac car is perhaps not so rare as to be indelibly conspicuous, yet we think it would be more readily remembered than another more common brand. We consider that the period from June 4 to June 18 does not make possession on the later date 'too remote' in time as a matter of law which would require setting aside the verdict.

III.

Appellant refers us to Nelson v. State, 29 Ala.App. 121, 192 So. 594, where we find:

'* * * the State necessarily had to rely for a conviction upon the rule of evidence to the effect that the possession of goods, recently after a larceny or burglary, which were stolen in the commission of the offense, imposes on the possessor of such stolen goods the onus of explaining his possession. However, it is elementary that before the above rule can be invoked it is incumbent upon the State to first offer evidence to support the essential element, to the effect that the goods found in defendant's possession were the identical goods stolen at the time of the commission of the burglary. And in the instant case no such proof was adduced. The alleged injured party, Arcadia Johnson, in describing the stolen meat, testified: 'There were four sides and two hams of the meat.' The only other witness who attempted to describe the meat, Mrs. Deal Smith, stated 'there were three hams and four middlings gone out of the smokehouse.' As stated, the testimony of these two witnesses, coupled with that of witness O. W. Pope, was sufficient to establish the corpus delicti. But no testimony was adduced, or attempted so far as the record discloses, which showed or tended to show that the meat admittedly taken by the two parties and left with witness Charlie Boswell was the identifical meat stolen from Mr. Pope's smokehouse, or even that it consisted of 'side meat, middlings and hams.' Charlie Boswell testified: 'They had some meat in a sack,--an osnaburg cotton-sack. I never looked in the sack, and do not know what kind of meat it was.' Non constat, the meat in the sack may have been of an entirely different kind of meat. An assumption that it was the stolen meat complained of, may not be indulged; nor could suspicion, conjecture, or surmise, be substituted for the legal evidence necessary to establish the fact.'

In 1965 we reversed a circumstantial evidence burglary conviction in Daw v. State, 42 Ala.App. 642, 176 So.2d 49. Therein, after stating the rule laid down in Nelson, supra, we applied it as follows:

'In the instant case the State failed to show that the pecans which appellant sold to O'Farrell shortly after the burglary were identical to, or the 'same kind' as those stolen from Hall's store. O'Farrell described...