Lipscomb v. State

• Decision Date: 11 February 1947
• Docket Number: 6 Div. 318.
• Citation: 32 Ala.App. 623,29 So.2d 145
• Parties: LIPSCOMB v. STATE.
• Court: Alabama Court of Appeals

29 So.2d 145

32 Ala.App. 623

LIPSCOMB v. STATE.

6 Div. 318.

Alabama Court of Appeals

February 11, 1947

Motley & Motely, of Gadsden, for appellant.

A. A. Carmichael, Atty. Gen., and MacDonald Gallion, Asst. Atty. Gen., for the State.

HARWOOD Judge.

Four indictments were returned against this appellant. The first one charged him with burglary of a store of the Lane Drug Stores, Inc., the second with burglary of a Gulf Refining Company filling station, and with larceny therefrom, the third with burglary of the store of R. E. Walthour, larceny and buying, receiving or concealing property stolen from R E. Walthour, and the fourth with burglary of the store of the Lawson Auto Parts Company, Inc., and larceny.

The appellant was not represented by counsel in the trial below.

When the cases were called for trial, bearing Jefferson Circuit Court docket Nos. 82951, 82952, 82953, and 82954 respectively, the defendant consented and agreed that all four cases be tried at the same time and before the same jury.

The undisputed evidence shows that on the night of December 1 1945 the Lane Drug Company at Highland Avenue and 22d Street in the City of Brimingham was broken into and about forty or fifty pennies were taken from the cash register. Other contents of the cash register were scattered over the floor.

On that same night a Gulf filling station at 5600 First Avenue South was broken into and money and checks totalling $799 were stolen.

On December 20, 1945 the Walthour Gun and Key Shop at 207 No. 22d Street was broken into and twelve or thirteen pistols valued at $200 to $300, and a suit case valued at $12.50 were stolen.

On December 22, 1945 the Lawson Auto Parts Company at 500 South 21st Street was broken into and approximately $180 in cash and $1200 in government bonds made out to Miss Lavergne Day were stolen.

R. G. Cramer, a police officer of the City of Birmingham, testified that at about 11:50 p. m. on a night in December 1945 he saw that the glass in the door to the Gaines Drug Company at Clairmont Avenue and 29th Street had been broken out. Entering the drug store he apprehended the appellant in the store. Upon searching appellant he found some checks belonging to the Gulf Refining Company. Later he turned the appellant over to H. C. Abbott, a detective for the City of Birmingham.

Mr. Abbott testified that appellant was again searched in his presence and some money and a key were found on him. The key was to a locker in the Bus Terminal, Mr. Cramer then went to a rooming house at an address given to him by appellant. Nothing incriminating was found in appellant's room, but a suit case was found in possession of the landlady which had been left with her by the appellant. This suit case contained clothes, money, checks and government bonds payable to Miss Day. The checks were identified by Mr. Jones of the Gulf Filling Station as having been among those taken from the station the night it was burglarized. The money in the suit case was in a bag and the appellant told Mr. Abbott he had gotten the money and the bonds from the Lawson Auto Parts Company.

With the key found on the appellant the locker in the Bus Terminal was opened and in it was found the pistols and suit case taken from Walthour Gun and Key Shop.

Mr. Abbott further testified that the appellant admitted breaking into the four above-described places and taking the property mentioned therefrom.

After the State rested the court informed the appellant that he had the right to testify under oath and asked him if he wanted to take the stand. Appellant replied he did and was thereupon sworn by the court.

Appellant's statement as a witness consisted of telling the court that one of the State's witnesses had remained in the court room after testifying. The court explained that this witness had remained in the court room during a recess in the trial and that it was proper for the solicitor to confer with the witness during this recess if he desired.

The appellant then stated he had nothing further to say, and was thereupon cross-examined by the solicitor. During this cross-examination appellant denied he had broken in or been arrested by Mr. Cramer in the Gaines Drug Company, or had participated in any way in any of the aforementioned offenses, or had admitted to Mr. Abbott any participation in any offense. He further denied that any key to any locker had been found on him. He further stated he had lived at the Granada Hotel at the time of these offenses.

The jury returned a verdict of guilty in case No. 82951, the indictment charging burglary of the Lane Drug Store; of guilty of larceny in case No. 82952, the indictment in this case being for burglary and for larceny of and from a shop or store of the Gulf Refining Company; of guilty of buying, receiving or concealing property in case No. 82953, the indictment being for burglary of, or larceny, from R. E. Walthour, and buying, receiving, or concealing goods stolen from R. E. Walthour; and guilty of larceny in case No. 82954, the indictment in this case charging burglary of, and larceny from the Lawson Auto Parts Company.

In the verdicts of guilty of larceny, and...