Nicholson v. State

• Decision Date: 27 March 1979
• Docket Number: 4 Div. 688
• Citation: 369 So.2d 304
• Parties: Roy E. NICHOLSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 304

369 So.2d 304

Roy E. NICHOLSON v. STATE.

4 Div. 688.

Court of Criminal Appeals of Alabama.

March 27, 1979.

Jerry E. Stokes, Andalusia, for appellant.

William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

In a two count indictment the appellant was charged with grand larceny and with buying, receiving, or concealing stolen property. The property in question was the same under both counts: a truck windshield, transmission, and engine flywheel valued at $285.00. The jury found the appellant "guilty as charged" and the trial court adjudged him guilty of both grand larceny and buying, receiving, and concealing stolen property. Sentence was fixed at two years' imprisonment.

According to the evidence presented by the prosecution the appellant, two other men, and three women removed a windshield, a transmission, and an engine flywheel from some old "junk" trucks located in a clay pit south of Opp, Alabama. The pit and the trucks were owned by Mixon Young, who had given no one permission or authorization to remove any part from the trucks. The appellant admitted taking two motor mounts and a windshield but claimed that a dump truck driver at the pit told them that they could have the parts off the junk trucks. The thrust of the entire defense was that the appellant thought that the trucks had been abandoned and did not have the unlawful intent to steal parts from them.

I

Immediately after the State rested its case, defense counsel moved to dismiss the charges on the basis that the State had not made out a prima facie case on either count. This motion was denied. At the conclusion of the court's oral charge to the jury defense counsel requested the affirmative charge to each count in the indictment.

The motion to dismiss and the affirmative charge as to count two in the indictment should have been given as there is not one shred of evidence in the record that the appellant bought, received, or concealed stolen property. The State's own evidence shows beyond any doubt that the appellant actually took the truck parts charged to be stolen. Therefore he could not be guilty of buying, receiving, or concealing stolen property. "Since a thief may not receive stolen property from himself, the appellant cannot be convicted of receiving stolen property where the evidence shows that (he) actually stole the property." Davidson v. State, 360 So.2d 728, 731 (Ala.Cr.App.), cert. denied, 360 So.2d 731 (Ala.1978).

The trial judge instructed the jury to return a verdict of "guilty as charged" if they were convinced beyond a reasonable doubt that the appellant was guilty of Either grand larceny Or receiving stolen property. Consequently, the failure to grant the appellant's motion to exclude or to give the requested affirmative charge as to the second count of the indictment constitutes reversible error because of the general verdict of guilty returned by the jury.

When a general verdict is returned in a case where the evidence is sufficient to support one or more counts in the indictment, but insufficient to support others, and the affirmative charge as to those unsupported counts is refused, such action by the trial court is reversible error. Jones v. State, 236 Ala. 30, 33, 182 So. 404 (1937); Hawes v. State, 216 Ala. 151, 152, 112 So. 761 (1927); Stover v. State, 36 Ala.App. 696, 698, 63 So.2d 386 (1953). Under such circumstances the general verdict of guilty is not referable to the count in the indictment supported by the evidence. Stover, supra. The reason for this is apparent: when the jury returns a general verdict in accordance with instructions given by the trial court and the affirmative charge has been refused as to each count, it becomes impossible to determine from the record under which count of the indictment the jury found the appellant guilty. Hawes, supra.

When an accused is charged in a two count indictment with both larceny and buying, receiving, or concealing stolen property, and the property in question is the same, the jury should be instructed to specify under which count they find the accused guilty, rather than be instructed to return the general verdict if they believe him guilty under either count. Since an accused cannot be found guilty of both larceny and buying, receiving, or concealing stolen property, he is guilty, if at all, of either one offense or the other. Davidson, supra. Of course, if no evidence is presented as to one of the counts, as is the present situation, and the affirmative charge is requested as to that count, it is the duty of the trial court to give that charge. Stover, supra; Jurzak v. State, 19 Ala.App. 290, 291, 97 So. 178 (1923).

The Double Jeopardy Clause of the Fifth Amendment precludes a second trial once a reviewing court has found the evidence insufficient to sustain the jury's verdict of guilty. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Since the State produced no evidence of buying, receiving, or concealing stolen property and the appellant was entitled to a directed verdict of acquittal on that count of the indictment. He cannot be retried for such offense.

II

The trial court refused to give the following written instruction requested by the appellant:

"The court charges you that you may not find the defendant guilty of grand larceny if you believe from the evidence that the defendant honestly believed that the property which he is alleged to have taken had been discarded and abandoned by its owner."

Failure to give this charge also constituted error. To be guilty of grand larceny one must have a felonious intent. Golston v. State, 57 Ala.App. 623, 330 So.2d 446 (1975). This intent is lacking and the defendant is not guilty of larceny if he has taken the property with the reasonable and actual belief that it was abandoned. Szewczyk v. State, 7 Md.App. 597, 256 A.2d 713 (1969); State v. Gage, 272 Minn. 106, 136 N.W.2d 662 (1965). See also Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); 52A C.J.S. Larceny § 25(b) ...