King v. State
Decision Date | 26 January 1971 |
Docket Number | 1 Div. 8 |
Citation | 243 So.2d 766,46 Ala.App. 493 |
Parties | Grover KING, Allas v. STATE |
Court | Alabama Court of Criminal Appeals |
Ralph G. Holberg, III, Asst. Dist. Defender of the Mobile District Defender Agency, Inc., Mobile, for appellant.
MacDonald Gallion, Atty. Gen., and Jasper B. Roberts, Asst. Atty. Gen., for the State.
Buying, receiving, etc., stolen goods: sentence, five years.
Only two points are raised on this appeal: first, as to whether the grand larceny equivalent value was proved; and, second, whether an erroneous ex mero motu charge not excepted to can be taken up on appeal.
The offense denounced by Code 1940, T. 14, § 338, and its punishment are covered by said section as follows:
'Any person who buys, receives, conceals, or aids in concealing any personal property whatever, knowing that it has been stolen, or having reasonable grounds for believing that it has been stolen, and not having the intent to restore it to the owner, shall, on conviction, be punished as if he had stolen it; and such offender may be tried and convicted, although the person who stole the property has not been tried and convicted.'
The grand larceny statute, T. 14, § 331, as amended, provides that a value of $5.00 or more is grand larceny when the taking is from or in--among other places not here pertinent--any dwelling house. Stealing of instant concern was from the home of one Lionel Hackett.
Hackett was at sea when the trial took place. Hence, the State lacked his testimony to prove value. See McElroy, Evidence (2d ed.), § 128.11. Instead the District Attorney sent across the street for a radio shop owner.
The appellant's brief argues the point thus:
qualification as an expert in the market value of radios, generally. When the witness' attention was called to the particular radio in question, the following testimony followed:
'On cross-examination the witness admitted he could not tell how old the radio was by looking at it, and that its value depended on its operating condition, which condition was unknown to him (R. 29--30). He was asked to turn on the radio.
'The witness' opinion that the radio's value was $125.00 was not admitted into evidence in answer to a hypothetical question. Neither is it shown from the record, as the foregoing excerpts bear out, that the witness had an opportunity to examine the item as a basis for the formation of an opinion of its value. Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633 (1927); McElroy's Law of Evidence in Alabama, 2d Ed., vol. 1, sec. 130, p. 325; Title 7, section 367, Code of Alabama, 1940, as amended. The witness' 'opinion' was nothing more than his guess. Such testimony ought not to suffice in a criminal case to establish an essential element of the case against the defendant.
Since the radio was in court and the jury as well as the witness observed it, and since the State only needed to prove a market value of $5.00, we consider that the evidence was sufficient for this purpose. Code 1940, T. 7, § 367 reads:
King, in brief, argues:
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