Miller v. State, 4 Div. 517
Decision Date | 15 March 1966 |
Docket Number | 4 Div. 517 |
Citation | 189 So.2d 576,43 Ala.App. 287 |
Parties | Leamon MILLER v. STATE. |
Court | Alabama Court of Appeals |
Alice L. Anderson, Enterprise, for appellant.
Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.
This appeal was submitted March 25, 1965.
On an indictment 1 therefor, a petty jury found Miller guilty of second degree burglary.
The trial judge, after adjudication and allocation, sentenced him to five years in the penitentiary. Miller's counsel noted an appeal. Thereafter, another attorney filed a motion for new trial in the circuit court. This was denied.
We review both judgments. Code 1940, T. 15, §§ 368 and 389.
The tendency of the prosecution's proof was:
One night in November, 1962, some one broke into the jewelry shop of Mr. Vernon Dillard in Samson, Alabama.
Mr. Dillard, on taking stock after the breaking and entry, missed a number of Bulova wrist watches. At least one of these watches was traced to Miller's possession a short time afterwards.
A policeman who found the front door of Dillard's store open testified in part:
Identity of one seen at one time and one seen later is perforce not perfectly precise. Particularly, at night a fleeing man is often perceived in a glimpse.
Yet, comparison between the known and the supposed is a relative process. All the elements of the viewer's perception, the object's familiarity and the circumstantial setting are brought into question.
Hence, after a witness has testified that he has previously seen a man, it is generally permissible to ask his opinion or judgment as to whether or not a man he saw later was the same person. Williams v. State, 149 Ala. 4, 43 So. 720.
The trial judge may, if the acquaintance seems scant, accede to opposing counsel's motion for examination on voir dire. Certainly, in any case, the adversary may cross examine. See generally, 32 C.J.S. Evidence § 546(24).
Here the policeman's testimony sufficed to support the verdict on the issue of Miller's being seen at the store.
The possession of goods recently stolen in burglary affords a logical inference that the possessor--without a satisfactory explanation--was the burglar.
In Swoope v. State, 19 Ala.App. 254, 96 So. 728, we find:
'It is true that the averments in the indictment did not describe such domestic goods among the designated articles of merchandise stolen, but this testimony was admissible in order to shed light upon the questions involved, and, although not described in the indictment the fact that this defendant was found to be in possession of these recently stolen goods was a circumstance tending to shed light upon the issues involved.'
We consider there was sufficient evidence from not only (1) the officer's testimony of the appearance of the fleeing culprit but also (2) Miller's possession of part of the loot to support the verdict.
We are cited to Danner v. State, 54 Ala. 127, to illustrate a defect in the indictment.
Until the adoption of the 1940 Code, no separate form appeared for a charge of second degree burglary. See Editor's note T. 15, § 259, Forms 29 and 32. Second degree burglary is the noncapital residue of the former statutory crime which Act No. 100, June 6, 1935, divided into two degrees.
The indictment of instant concern uses 'things of value.' This expression is a relic of Form 27, 'burglary,' in § 4556 of the 1923 Code. The recommended language in Form 32, T. 15, 1940 Code, is 'or other valuable thing (Describing it).' (Italics added.)
However, since no demurrer was interposed and since no ground of the motion for new trial raised the point, we consider there was no error since there was proof of all the essential elements of the statutory offense. Code 1940, T. 14, § 86.
That the expression 'things of value' was used as a synonym for the statutory term 'goods, wares, merchandise' rather than as equivalent to 'or other valuable thing' is not fatal here. The constitutional requirement (Const.1901, § 6) that the accused be made aware of the nature and cause of the charge against him has been met.
This conclusion we rest on the purpose as well as the letter of the statute.
Common law burglary mainly punished nocturnal breach of another's dwelling. Now, however, we have in § 86, supra, an additional felony of (1) breaking and (2) entering with (3) larcenous or felonious intent into (4) any one of three categories of buildings.
These three classes are: (a) an uninhabited (occupants temporarily away) dwelling house; (b) any building or structure or enclosure in a curtilage; or (c) a shop, store, warehouse, or specially constructed depository structure or enclosure, if therein at the time 'any goods, wares, merchandise or other valuable thing is kept for use, sale, or deposit.'
To set up a penal deterrence in favor of buildings which are not merely empty, the third category of buildings, (c) above, has appended the qualification of keeping therein for use, sale or deposit of chattels or 'things.' Crawford v. State, 44 Ala. 382. See also Ashmon v. State, 9 Ala.App. 29, 63 So. 754; Diggs v. State, 20 Ala.App. 213, 101 So. 357.
Mr. Justice Harwood, while on this court, illustrated his opinion in Evans v. State, 34 Ala.App. 534, 41 So.2d 615, with pertinent and persuasive obiter dicta:
'* * * a building, structure, etc., unless shown by an averment to that effect may reasonably be presumed to be empty, thereby affording no reasonable or satisfactory basis on which to found any larcenous or other felonious intent by reason of entry thereinto.
* * *'
As light on the meaning of 'things of value,' the opinion says:
Syntactical analysis of the indictment has the phrase 'things of value' used as an adjective modifier in apposition with and here referring to the nearest preceding antecedent noun, i.e., 'merchandise.' McCormick v. State, 141 Ala. 75, 37 So. 377; Green v. State, 15 Ala.App. 579, 74 So. 399.
Value 2 is the worth of an object either for consumption or for capital, as in the process of producing other goods. In commercial law it connotes consideration. Since the term 'merchandise' evoked an image of buying and selling, its employment in pleading is not antagonistic to the term 'things of value.'
We quote from Cheatwood v. State, 22 Ala.App. 165, 113 So. 482:
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