Oates v. State, 3 Div. 45

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: JOSEPH J. MULLINS
• Citation: 375 So.2d 1285
• Docket Number: 3 Div. 45
• Decision Date: 16 October 1979
• Parties: Roger OATES v. STATE.

Page 1285

375 So.2d 1285 Roger OATES
v.
STATE. 3 Div. 45. Court of Criminal Appeals of Alabama. Oct. 16, 1979.

Page 1286

Kenneth Jay Shinbaum, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.

JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant was convicted on an indictment charging him with receiving, concealing, etc., One Mercury Outboard Motor, of the value of $1,000.00, the personal property of Carl Bolch, Jr., knowing it was stolen and not having the intent to restore it to the owner, and sentenced to imprisonment in the penitentiary for a term of eight years.

The appellant was represented by counsel of his choice at all proceedings in the trial court and is represented in this Court by the same counsel under court appointment. This appeal was submitted to this Court on briefs.

Appellant in his brief contends that the trial court erred to his prejudice on five grounds: First, by overruling his objection to a question propounded to state's witness as to the owner of the stolen motor; second, by refusing to give the affirmative charge requested by the appellant, and denying his motion to exclude state's evidence; third, by overruling appellant's objection with reference to the color of mud found on appellant's shoes and the stolen motor; fourth, in its oral charge to the jury; fifth, by refusing appellant's written charges nos. 8, 11, and 12.

On direct examination of state's witness, Mr. Hendrix, the following occurred:

"Q. Now, I direct your attention, specifically, to a Saturday, which was May the 6th, 1978, and ask you, if at that time you had in your possession a motor a 85 Horsepower, Mercury Outboard Motor?

A. Yes, sir.

Q. And, to whom did it belong?

A. Carl

MR. KENNETH SHINBAUM: Your Honor, I'm going to object.

THE COURT: What's your grounds?

MR. KENNETH SHINBAUM: On certain whether his information might be based on hearsay.

THE COURT: Well, if he knows who it belongs to, I'll let him testify. If he doesn't know, he can say so. Do you know who it belongs to? (INDICATING TO THE WITNESS)

MR. JERRY HENDRIX: Yes, sir.

THE COURT: All right. Overrule the objection.

Page 1287

MR. GLEN CURLEE, (CONTINUING).

Q. Who had owned it?

A. Carl Bolch, Jr.

Q. All right. And, why did it happen to be at your place of business?

A. He brought it in for repairs.

MR. GLEN CURLEE: Would you bring the motor in, please? (INDICATING)."

Later during the trial and on cross-examination of state's witness, Mr. Hendrix, the appellant brought out certain facts which he contends proves that Mr. Hendrix's knowledge of the ownership of the stolen motor was based on hearsay evidence. We have searched the record and do not find a motion by the appellant to exclude any part of Mr. Hendrix's testimony as to the owner of the stolen motor.

Review on appeal is limited to a consideration of questions properly raised in the trial court. Harris v. State, Ala.Cr.App., 347 So.2d 1363, Certiorari denied, Ala., 347 So.2d 1368; Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583. Appellant's objection was to the question, "And, to whom did it belong?" This was a valid question and the court after telling the witness if he knows who this motor belongs to he would let him answer the question. If he doesn't know, he can say so. Then the court asked the witness do you know who it belongs to? And the witness answered, "yes, sir." Whereupon, the court overruled the appellant's objection. We hold that the trial court was not in error when it overruled appellant's objection. We also hold that when evidence is admitted on direct examination, and later, during cross-examination, it appears that such evidence was not admissible, and the complaining party does not make a proper motion to exclude such evidence from the jury, the trial court cannot be put in error for permitting that evidence to remain before the jury. Allred v. State, 55 Ala.App. 74, 313 So.2d 195, Certiorari denied, 294 Ala. 751, 313 So.2d 203; Bufkins v. State, 20 Ala.App. 457, 103 So. 902, Certiorari denied, 212 Ala. 638, 103 So. 906; Minton v. State, 20 Ala.App. 176, 101 So. 169.

Appellant's written request for the affirmative charge, and the trial court's refusal to grant it, and the trial court's refusal to grant appellant's motion to exclude state's evidence presents to this Court the weight and sufficiency of the state's evidence to sustain the jury verdict. Paige v. State, 56 Ala.App. 121, 319 So.2d 740.

The essential elements of the crime of buying, receiving or concealing stolen goods are: (1.) That the property described in the indictment had been feloniously taken and carried away, as...