Lofton v. State
| Decision Date | 05 June 1979 |
| Docket Number | 4 Div. 704 |
| Citation | 371 So.2d 988 |
| Parties | William McKinley LOFTON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John M. Gruenewald, Dothan, for appellant.
Charles A. Graddick, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State.
Appellant was jointly indicted with Horace Eugene Williams for the offense of grand larceny. A severance was granted, and appellant was tried and convicted. The court sentenced appellant to ten years imprisonment in the penitentiary. He was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed appellant gave notice of appeal. He is in this court with a free transcript and trial counsel was appointed to represent him on appeal.
The evidence presented by the State is undisputed. Appellant did not testify nor was any testimony offered in his defense. At the conclusion of the State's case appellant made a motion to exclude the evidence on the ground the State failed to make out a prima facie case.
Thomas Efurd lived in the small community of Avon in Houston County, Alabama, and was the owner of a grocery store. He was doing business under the name of Efurd's Dixie Dandy. On September 7, 1978, appellant and Williams entered his store shortly after 3:00 p. m. Efurd was at the cash register when the men entered the store. He observed the men walking around in the aisles of the store, and he went to the market and started working.
Around 10:00 a. m. on September 7, 1978, Mr. Efurd filled the cigarette display rack to capacity with different brands of cigarettes in cartons. The Town of Avon had a two cents tax per pack on all cigarettes sold in the town. Mr. Efurd had a Monarch pricing machine which he used to stamp each package of cigarettes and no other store in Avon used such a stamping machine.
While Mr. Efurd was in the market he looked around and saw Williams at the cigarette rack and he observed him bending over, standing back, and looking around. Mr. Efurd left the market and as he was walking toward the cigarette rack Williams asked him the price of a certain brand of cigarettes. Before Mr. Efurd could answer, Williams said, "Never mind, I see the price." Williams then walked out of the store. Appellant left the store before Williams did. Mr. Efurd went to the cigarette rack and immediately noticed that at least fifteen cartons of cigarettes were missing. He had last checked the rack between 12:00 and 1:00 and there were no cartons missing.
Mr. Efurd was informed that the two men had driven away in a two-toned blue Oldsmobile Ninety-Eight. He got in his car and drove east on Highway 84 in an effort to overtake the men. Ten minutes later he found the men parked in the Piggly Wiggly parking lot in Ashford, Alabama. Appellant was in the driver's seat and Williams was on the passenger side. The two men started driving east on Highway 84 and Mr. Efurd followed them. They had to stop for a traffic light and Efurd got the tag number of the "98" Oldsmobile. It was a Florida tag number CUK-292. He went to the Ashford police and reported the incident, giving them a description of the automobile and the tag number.
Mr. Efurd then returned to his store to get a more accurate accounting of the missing cartons of cigarettes. He determined that seventeen cartons were missing two cartons of Camels, six cartons of Salems, and nine cartons of Kools. Mr. Efurd stated that $4.99 was marked on each carton with the Monarch pricing device and that the fair market price of the missing cigarettes was approximately $85.00.
Mr. Efurd further testified that, about one hour after he returned to his store, the police notified him the two men had been apprehended. He went to the station house the next morning to identify and pick up his cigarettes. He identified his cigarettes by the Monarch price stamp and the Avon tax stamp on them.
Mr. Jerry Godby testified that he was the Sheriff of Seminole County, Georgia, and that on the afternoon of September 7, 1978, he received information from the authorities of Houston County, Alabama, to be on the lookout for a blue Oldsmobile and he was given the tag number. Sheriff Godby stopped the described automobile on Highway 84 a few minutes after 5:00 Georgia time. When he stopped the car the driver got out. He identified the driver as appellant and said that Williams was seated in front on the passenger side. The sheriff gave both men the Miranda rights and warnings and told them there were some problems in Alabama. He directed them to follow him to the sheriff's office. The sheriff ascertained that Williams was the owner of the car. When they arrived at the sheriff's office the men got out of the car and locked it before going into the sheriff's office.
Williams gave the officers his consent to search the car. Sergeant Gerald Monday from the Houston County Sheriff's Office was present during the search. Recovered from the trunk of the automobile were ten cartons of Salem cigarettes, eighteen cartons of Kools, thirteen cartons of Winstons, one carton of Pall Mall, and two cartons of Camels. Appellant and Williams were arrested and placed in custody of Sergeant Monday along with the forty-four cartons of cigarettes.
Sergeant Monday testified that, on September 7, 1978, he went to the Sheriff's Office in Seminole County, Georgia, where he saw appellant. He had previously radioed Sheriff Godby and given him information concerning a blue Oldsmobile and was present at the time this car was searched. The cigarettes found in the trunk of this car were turned over to him and the two suspects were placed in his custody. He further stated that seventeen cartons of cigarettes had the Town of Avon two cents sales tax on them. These seventeen cartons of cigarettes included six cartons of Salems, two cartons of Camels and nine cartons of Kool King cigarettes. Sixteen of these cartons were delivered to Thomas Efurd and he kept one carton which he produced at appellant's trial. Mr. Efurd identified the seventeen cartons as his property. The carton retained by Sergeant Monday had a tear on one end...
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