McCay v. State, 6 Div. 373

• Decision Date: 08 March 1977
• Docket Number: 6 Div. 373
• Citation: 343 So.2d 577
• Parties: Thomas Roland McCAY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 577

343 So.2d 577

Thomas Roland McCAY v. STATE.

6 Div. 373.

Court of Criminal Appeals of Alabama.

March 8, 1977.

William Conway, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.

HARRIS, Judge.

Appellant was convicted of burglary in the second degree and the Court sentenced him to ten years imprisonment in the penitentiary. He was represented throughout the trial proceedings by retained counsel. At arraignment he waived the reading of the indictment and pleaded not guilty. After sentence was imposed he gave notice of appeal and his bond was fixed at fifteen thousand dollars. He is free on bond pending this appeal.

There was no motion to exclude the State's evidence; there was no request for the affirmative charge; and no exceptions were reserved to the oral charge of the court. After appellant's conviction he employed new counsel to represent him and a motion for a new trial was filed. This motion raised the sufficiency of the evidence to convict appellant but no evidence was offered at the hearing and after argument the motion was overruled.

The State's case was based entirely on circumstantial evidence. Appellant did not testify in his behalf.

The evidence adduced by the State tended to show that on the afternoon of June 21, 1976, the home of Captain Carl Vincent Garrett located in Blount County, Alabama, was broken into and seven guns, rifles and pistols were stolen. The value of these weapons was fixed by the owner at $650.00. Also several pocketknives and three sets of knucks were taken at the same time. Captain Garrett was employed by the Birmingham Police Department. He and his wife were in Florida on vacation at the time of the burglary. Their daughter and small baby lived with them but were not at the house when the burglary occurred. She had a paper delivery route that afternoon.

The daughter, Carla Jean Garrett, testified that she knew appellant and saw him on June 21, 1976, about 12:30 p.m. driving on Highway 79, in a dark blue Mustang automobile. She stated that she and appellant were going in opposite directions and appellant waved at her. She was driving in the direction of Birmingham and appellant was driving in the direction of Locust Fort which was in the vicinity of her parents' home. She further testified that she did not return home until around 4:30 o'clock that afternoon and she discovered that the front door to her parents' trailer home had been broken in; that the locks were off. The metal around the lock was messed up and the wood casing near the lock appeared to have been damaged in forcing the door open; the door was partly open and she entered the trailer and found most of the rooms, closets and drawers open and things scattered all over the floor. She noticed that several guns were missing from two gun racks in the house. Her father's personal papers and files were also scattered on the floor. She immediately called the Sheriff's Department and reported the burglary.

Kenneth Tawbush testified that he lived about two miles south of Locust Fort on a dirt road off Highway 79 and about 300 to 400 feet from Captain Garrett's trailer home. He further testified that around 12:30 p.m. on June 21, 1976, he saw appellant driving by his house in a dark colored small car and waved at him. That appellant continued on toward the driveway of the Garrett home. He said that about thirty minutes later he saw appellant and another man come out of the Garrett driveway on foot and each man was carrying long guns in his arms; that the men were walking in a westerly direction. He did not see the automobile appellant was driving leave the Garrett place as he had to leave with his wife to go get groceries. He stated that in addition to the guns appellant was also carrying a sack or bag.

Tawbush further testified that a few months before the burglary of the Garrett home one Danny McCay was employed by him to help dig some field lines and that appellant came to where they were working and had a conversation with Danny McCay in his presence. He stated that Danny and appellant were related but he did not know the exact relationship. He said on this occasion appellant told Danny McCay that the Garrett house was a good place to hit, or would be an easy place to hit.

Hoyt Ronny Barnett, an officer with the Birmingham Police Department, testified that his patrol hours were from 1:00 p.m. until 11:00 p.m. and that he was on duty on June 23, 1976; that another officer asked him to examine and check out a blue Mustang automobile which was parked on the side of a public street in Birmingham. Officer Barnett found the blue Mustang parked where the other officer told him it would be. The windows to the car were down and the car was not locked and he saw some knives, knucks and a screwdriver between the bucket seats in plain view. The officer picked up the knives and knucks and wrote a note which he left in the car to notify the owner that he could come to the precinct station and pick up his property. A short time later appellant appeared at the precinct station and informed Officer Barnett that he was the owner of the blue Mustang and was there to pick up his property. Appellant told the officer the knives belonged to him but that he had never seen the knucks before in his whole life. The officer gave appellant the knives and he drove off in the Mustang.

Officer Barnett kept the knucks in his exclusive possession after putting his initials on them with an electric scriber until he turned them over to Aubrey H. Glasscock, Deputy Sheriff of Blount County. At trial Officer Barnett identified his initials on the knucks. Captain Garrett identified the knucks as belonging to him and that they were one of the three sets of knucks he left in his home on June 21, 1976 when he left for a vacation in Florida. Captain Garrett was positive in his identification of the knucks by saying that 'one of the posts on the knucks was broken' and that was the only one of the three sets that had a broken post.

Deputy Aubrey H. Glasscock of Blount County testified that he received a complaint that the Garrett house near Locust Fort had been burglarized on June 21, 1976, and he went to this house that afternoon to conduct an investigation and he talked to Carla Garrett. He found the front door had been pried open and there were score or scratched marks on the striker plate. He stated the rooms in the house were ransacked and that clothes, papers and files were scattered all over the house. He found the gun racks empty. He talked to Captain Garrett by telephon the next night and got a better description of the missing guns and other items of personal property. He stated that Officer Barnett gave him the knucks the night following Barnett's report of the Mustang automobile in Birmingham and he placed the knucks in his locked evidence locker. Glasscock further testified that he started looking for appellant in connection with this burglary and drove to his home on July 30, 1976. When he got to appellant's home appellant was just driving in his driveway in a 1970 blue Mustang car. He arrested appellant for second degree burglary and gave him the Miranda rights and warnings. He transported him to jail and had another officer follow in appellant's automobile. Glasscock saw a screwdriver with a chipped place on it lying in plain view between the bucket seats. He told appellant he wanted to take the screwdriver and appellant told him it was all right with him; that he could take it and keep it. After taking appellant to jail he again gave him the Miranda rights and warnings and appellant stated he understood his rights but he did not care to make a statement.

At the request of Captain Garrett and Deputy Glasscock Sergeant David...