Livingston v. State
| Decision Date | 19 November 1968 |
| Docket Number | 3 Div. 258 |
| Citation | 44 Ala.App. 559,216 So.2d 731 |
| Parties | William Kyle LIVINGSTON v. STATE. |
| Court | Alabama Court of Appeals |
Elno A. Smith, Montgomery, for appellant.
MacDonald Gallion, Atty. Gen., and Marlin Mooneyham, Asst. Atty. Gen., for the State.
Livingston appeals from a judgment of conviction based on a general verdict of guilt. The indictment was in two counts: one for statutory burglary, second degree; the other for grand larceny. 1
The Legislature has prescribed the same statutory range of maximum and minimum punishment for both these crimes. Code 1940, T. 14, § 86 (burglary, second), and § 331, as amended (grand larceny). Hence, since the court pronounced but one sentence of three years in the penitentiary no question is presented under Lawson v. State, 33 Ala.App. 333, 33 So.2d 405, and Wildman v. State, 42 Ala.App. 357, 165 So.2d 396.
Thus, a prima facie case of either or both these crimes would support (apart from other questions) a general verdict.
Since the State has accepted the statement of facts in the appellant's brief, we shall--by paraphrase--set out the tendencies of the prosecution's evidence therefrom.
The State's first witness was Mrs. Exa Blackwell, manager of Al Levy's Inc., in Normandale Shopping Centre in Montgomery. About 9:00 A.M., December 13, 1965, as she reported for work, she observed the back door lock had been broken. She called the police department. On entering, Mrs. Blackwell, Mr. Levy and an officer discovered a lug wrench. The door to the fur room had been broken or prized open. Furs were missing of the total value of $3,425.00. Mrs. Blackwell testified that she knew of a night watchman being on duty and that he made regular rounds during the night.
J. D. Wade, a City Detective for the Montgomery Police Department, testified that he answered a call to the store; that the lock on the back door had been unscrewed with a wrench and the plunger pushed back and the door opened. Going inside he saw a flashlight lying on the floor. Toward the back of the store next to the storage room was a tire tool.
The back of Al Levy's store could be seen from Lynnwood Drive. But someone watching from Lynnwood Drive could not tell when the night watchman would be making his rounds. This because the check point to punch the watchman's portable time clock was out of sight.
A lug wrench described as fitting any Chrysler product was introduced (State's Exhibit 1). It had no tag marking it as the one discovered at Al Levy's store. Mr. Wade was unable to identify it. The State then introduced a second lug wrench (State's Exhibit 2). Mr. Wade identified this second wrench by a tag marking. He could not tell where this Exhibit 2 originally came from. It would fit a Dodge automobile. It had been turned over to the police by a car repairman.
The next witness called by the State was Mr. W. L. Holland, employed by the Alabama Department of 'Conversation' (sic). On Sunday night, December 12, 1965, he had occasion to be on Lynnwood Drive, which is on the west side of Norman Bridge Road near Normandale. From about 8:00 o'clock until 11:00 on the night of December 12, 1965, he was in and out of Lynnwood Drive. On these occasions he noticed what he described as a Chrysler product automobile parked facing Normandale. It bore a 1966 tag No. 45--2011. He saw two people in the car but could not tell whether or not it was two men or two women, but he did observe them at intervals parked in front of a vacant house. There was a mist or some moisture in the air and hence he was not sure as to exactly whether or not it was two men or a woman and a man in the car.
On cross, Mr. Holland testified in part:
'Q Give us your best judgment how many yards it is across there.
'A Oh, guessing, I'd say 1500.
'Q Fifteen hundred yards from over here up to Al Levy's; is that correct?
'A That's a guess.
'Q Almost a mile?
'A No, not quite a mile.'
The tag bearing 1965--66 license number 45--2044 belonged to Mr. W. K. Livingston, Jr., of Hope Hull, for a 1965 Dodge.
Mr. Meredith Harrell testified that he was the manager of the Normandale Shopping Centre. The night of December 12, 1965, he had a night watchman, Mr. Moorer, on duty at that time. His duties were to check the doors and for possible fire approximately every hour, making his rounds to each of the lock boxes or key stations at which time he would use the key to set the time on a clock that he carried with him. Mr. Harrell testified further that Mr. Moorer's rounds were at 9:15, 10:15, 11:15, between 12:00 and 12:15, 1:00 and 1:15, 2:00, between 3:15 and 3:30, 4:15 and the last one between 5:00 and 5:15.
If Mr. Moorer had alertly performed his duties, then the burglary had not taken place prior to 5:15 in the morning of the 13th. Mr. Harrell testified that he did not know the present whereabouts of Mr. Moorer because in February, 1966, he had been discharged for alcoholism. According to the clock for December 12, Moorer had checked the stores as required. Mr. Harrell testified that a person on Lynnwood Drive would have a view of the side entrance of Al Levy's but as to the lock station there is a fence or wall which would obstruct the view. This would prevent anyone from ascertaining the exact time the night watchman made his rounds to the lock station.
Mr. T. J. Ward, a City Detective, testified that he investigated the case against the appellant, William Kyle Livingston. Detective Ward testified that Mr. Livingston was going across the street from headquarters and he called him back to headquarters and talked to him, at this time knowing that Mr. Livingston was already a suspect in the burglary of Al Levy's store. Mr. Ward testified as to statements made by Mr. William Kyle Livingston concerning his whereabouts and as to the loan of his car and other factors which were later used as statements against him. Prior to this time Mr. Livingston had not been informed of his constitutional rights.
We quote:
'Q Mr Ward, prior to your conversations with Mr. Livingston did you advise him of his rights?
'A No, sir.
'T. J. WARD, resumed.
'BY MR. HILL:
'Q What did he say to you?
'A He said that on Sunday evening he picked Jack Keel up at the Holiday Inn on the Mobile Highway.
'Q Here in Montgomery?
'A Here in Montgomery. They rode around until approximately 8:30, and then about 9:30 he loaned him his car, and around 10:00 he got the car back and drove Keel out to the airport at Dannelley Field.
'Q About what time did he drive him out there?
'A Around 10:00 o'clock that night.
'Q Did he say he was driving in his car?
'A In his car.
'Q Did he mention where he went on Monday, December 13th?
'A On December 13th, 1965, he said he was in Atlanta, Georgia.
'Q What caused him to tell you that?
'A Well, I was asking him about a burglary at Al Levy's.
'Q What was said by you and what was said by him?
'A Well, I asked him about Jack Keel. Jack Keel was a suspect.
'Q What led up to that? Where did you meet him?
'A Where did I meet Sonny Kyle Livingston?
'Q Yes, when you had this conversation?
'A He was going across the street from headquarters, and I called him back to headquarters, I said I wanted to talk to him about Jack Keel.
'Q All right. Go ahead.
'A The purpose was to talk to him about Jack Keel. But I have just mentioned was--
'Q Go ahead. You told him you wanted to talk to him about Jack Keel. Then what was said?
'A He said he had met Jack Keel out at the Holiday Inn that evening, Sunday evening, December 12, 1965. And he said they rode around in his car until about 8:00 o'clock or thereabouts, he loaned Keel the car, he didn't ask Keel what the car was for, but he did loan him the car, and between 9:30 and 10:00 o'clock the car was returned, and he subsequently drove Keel to Dannelley Field apparently for a flight back to Birmingham.
'BY MR. SMITH:
'Q During this time did you ever tell Mr. Livingston of his Constitutional rights?
'A No, sir.
'Q Well, wasn't he also a suspect in this case?
'A Yes, sir.
'BY THE COURT:
'Q Did you tell him he was a suspect?
'A Well, Sonny's car was used in the burglary.
'BY MR. RIGGS:
'Q Well, he told you he had loaned his car to Keel?
'A Yes, sir.
'Q When you saw him what was your first conversation with him?
'A I said, 'Come on in here, I want to talke to you.' He said, 'What do you want to talk to me about?' I said, 'I want to talk to you about Jack Keel,' to see if he was involved around Keel.
'Q Did you tell him he was in it, about his car and all?
'A Just about his car. I didn't say anything about him though.
'THE COURT: I will let it go in.'
...
To continue reading
Request your trial
-
Donley v. City of Mountain Brook
...in the opinion. Viewing the evidence presented by the prosecution in its most favorable light, as we are required, Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968), we find that Ms. Allison Jane Ryan and appellant were married in August of 1978. The couple lived together as husban......
-
U.S. v. Dowd
...convictions defined second degree burglary identically to the Taylor definition of generic burglary. See Livingston v. State, 44 Ala.App. 559, 216 So.2d 731, 735-36 (Ala.Ct.App. 1968). Although Dowd's February 17, 1970, conviction identified his offense as simply "burglary," the indictment ......
-
Hayes v. State, 6 Div. 2
...the trial court at the time the motion was made can be considered. James v. State, 351 So.2d 693 (Ala.Cr.App.1977); Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968). The standard of review is whether there exists legal evidence before the jury, at the time the motion was made, fro......
-
Gainer v. State, 3 Div. 23
...the trial court at the time the motion was made can be considered. James v. State, 351 So.2d 693 (Ala.Cr.App.1977); Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1969). The standard of review is whether there exists legal evidence before the jury, at the time the motion was made, fro......