Lewis v. State, 1 Div. 272

• Decision Date: 12 March 1968
• Docket Number: 1 Div. 272
• Citation: Lewis v. State, 208 So.2d 228, 44 Ala.App. 319 (Ala. App. 1968)
• Parties: Saul LEWIS v. STATE.
• Court: Alabama Court of Appeals

Page 228

208 So.2d 228

44 Ala.App. 319

Saul LEWIS v.STATE.

1 Div. 272.

Court of Appeals of Alabama.

March 12, 1968.

Robt.G. Kendall of Johnston, Johnston & Nettles, Mobile, for appellant.

MacDonald Gallion, Atty. Gen., and Carl E. Watson, Asst. Atty. Gen., for the State.

PRICE, Presiding Judge.

This is an appeal from a conviction of burglary in the second degree.Punishment was fixed at six years in the penitentiary.

The Testimony for the state tends to show that the Andrews' Hardware Company in Citronelle, Alabama, was broken into in the early morning hours of August 29, 1966, and watches, firearms, radios, etc., were removed therefrom.Defendants, Saul Lewis, James Wooten and James Williams were surprised during the alleged burglary by Mobile County Deputies Hopkins and Baker.

Samuel H. Andrews, III, testified he was the owner of Andrews' Hardware Company; that the doors were locked on the night of August 28, 1966; and the glasses in the door were intact.When he arrived at the store about 2:50 A.M., on the 29th, merchandise belonging to Andrews' Hardware was scattered on the ground around the rear entrance and some of it was in an old two-door car; that a glass in the rear door of the store had been broken by having a concrete block thrown through it; that the reasonable value of the merchandise in the automobile was approximately $4,000.00.

According to the testimony of Officers Hopkins and Baker, they were parked in their automobile at the police station in Citronelle about 1:50 A.M., on August 29, 1966; that they heard a horn 'beep.'They drove toward Andrews' Hardware and turned into an alley and observed an automobile parked in back of the hardware store; that the area was well lighted; that there was one person in the automobile and two others, one of whom was defendant, were coming out of the back door of Andrews' Hardware; that the police siren was turned on, whereupon the persons coming from the store 'broke and run;' that defendant had merchandise in his hand which he threw down when he saw the officers.Hopkins chased the defendant and Baker gave chase to the other man; no one was arrested at the scene; James Wooten and one Williams were arrested in Citronelle later in the morning; neithr officer knew defendant's name at the time.

Albert Stroh, a deputy sheriff, testified he took part in the investigation of the alleged burglary; that he arrested defendant at his mother's home a day or two after the incident; that he looked in the automobile at the scene the night of the alleged burglary and saw various items that came out of the store; that he later inventoried the items; that the document marked state's exhibit 8 was a list made by him of articles taken out of the automobile; that the defendant, Williams and Wooten were arrested in connection with the alleged burglary; that Wooten gave him information as to who was involved in the burglary; that he arrested defendant after receiving such information.

For the defendant, Mary Lewis, defendant's mother, testified that on the night in question defendant was playing whist at the home of her oldest son; that witness left about 11:00 o'clock and defendant and Ruby Mason were still there when she left.

Ruby Mason, testified she was defendant's girl friend; that on the night of the alleged burglary she went with defendant to the Ebony Social Club; that they left there between 8:00 and 8:30 and went to defendant's brother's house and stayed all night; that to her knowledge defendant did not leave the house that evening.

James Wooten, for defendant, testified he pleaded guilty on the day of trial to a burglary that took place in the latter part of August, 1966; that defendant was not with him when the burglary took place; that he had seen defendant earlier in the evening, about 8:00 or 8:30, in the Ebony Social Club; that defendant was still there when witness left; that he did not see appellant again that evening; that after he was arrested he told the officers that he had seen defendant earlier in the evening.

On cross examination he stated that he also entered a plea of guilty to a charge of grand larceny of the automobile involved in this burglary; that he talked to Officers Stroh and Dees but he did not tell them that defendant burglarized the hardware store; that he did tell them where defendant lived; that he was on parole at the time of the burglary after convictions of robbery; that witness, James Williams and someone he later learned was Clifton Williams committed the burglary; that he was practically drunk at the time of the burglary.

Albert Stroh, recalled for the state in rebuttal, testified that he and Dees arrested defendant; that Wooten gave him the information as to where he could find defendant and told him that defendant and James Williams, also known as Cocky Williams, were involved in the burglary; that witness did not know where defendant lived until Wooten told him.

Tom Dees, in rebuttal for the State, testified he was Chief Investigator with the Sheriff's Department; that he investigated the Andrews' Hardware burglary; that he and Stroh arrested defendant; that Wooten told him that defendant, James Williams and Wooten committed the burglary; that he did not know where defendant lived until Wooten told him.

On cross examination the witness stated that the record of the arrest would appear on the docket sheet in the Sheriff's office.Whereupon, the docket sheet was obtained from the Sheriff's Department and Dees testified it showed that the arrest was actually made by Deputy Brown, a colored officer; that he remembered that he and Stroh went to defendant's home and were told by defendant's mother that defendant wasn't there; that Brown later picked him up and brought him to Dees and Stroh.

The evidence was ample to sustain the conviction of burglary as against the defense of alibi.See6 Ala.Dig. Criminal Law, k572 for cases.There was no error in...