Packer v. State, 1 Div. 511

CourtAlabama Court of Criminal Appeals
Writing for the CourtPER CURIAM
Citation55 Ala.App. 30,312 So.2d 601
PartiesOlney Lamont PACKER v. STATE.
Docket Number1 Div. 511
Decision Date06 May 1975

J. Richard Piel, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.


Appellant, Olney Lamont Packer, was indicted by a grand jury of Mobile County for grand larceny. The indictment charged the larceny of '. . . three ladies' dresses of the value of one hundred twenty-eight dollars, the personal property of Sarah Mansfield Hall, d/b/a The Wishing Well . . .'

A petit jury found Packer guilty. Judgment was entered in accord with the verdict. The trial court fixed Packer's punishment at imprisonment in a penitentiary of this state for a period of three years.

Packer was represented at all stages of the proceedings leading up to his conviction and sentence by an attorney appointed by the trial court. He is represented in this court by appointed counsel.

At the conclusion of the State's evidence, the appellant moved 'to exclude.' The motion was denied.

In considering the question as to whether the trial court correctly denied the motion to exclude, we can only consider the evidence which was before the trial court at the time the motion to exclude was made. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731. And we are required to consider the evidence in its most favorable light for the prosecution. Womack v. State, 34 Ala.App. 487, 41 So.2d 429.

Briefly, the evidence for the State tends to show that on February 20, 1974, Mrs. Sarah Mansfield Hall was the owner of a dress shop in the Pleasant Valley Shopping Center in Mobile County, Alabama, which she operated as The Wishing Well.

Around 1:00 P.M. on that day, two males entered the shop and engaged Mrs. Hall and her employee in an extensive conversation relative to certain items of merchandise. While Mrs. Hall was talking with the two males, the appellant and a woman, Willie Mae Young, came into the shop and stopped near a rack on which some dresses were hanging.

Mrs. Hall saw appellant take a dress from the rack and place it under a black, medium size leather coat which he was carrying on his shoulder. The dress was navy blue with a white collar. It had long sleeves on which were white cuffs.

Mrs. Hall saw appellant leave her shop with the dress. As he was leaving the shop, Mrs. Susan Douglas, a friend of Mrs. Hall's was entering. Mrs. Douglas saw a dark sleeve with a white cuff hanging out from under appellant's coat. Mrs. Hall told Mrs. Douglas that appellant had not bought anything and asked her to follow appellant. After leaving the shop, Mrs. Douglas saw the appellant in an automobile with several other persons. Mrs. Douglas got the number on the license tag of the automobile in which she saw appellant. She had this information given to a policeman.

An arrest order went out over the police radio which included a description of the automobile in which appellant had been seen, the number on the license tag of that automobile, and a description of the clothing the appellant was wearing.

Within a short time after the arrest order went out, the automobile described in that order was stopped by a police officer. The appellant, the other three persons who had entered Mrs. Hall's shop at about the same time as the appellant and a juvenile were in the automobile.

The police officers by looking through the windows of the automobile saw three ladies' dresses on the 'back floor board' of the automobile. They were crumpled and were wrapped in or covered by cellophane and partially covered by a black coat. The price tags were in plain view. One of the dresses was navy blue with a white collar and white cuffs.

Mrs. Hall later identified the three dresses as being her property and said they were worth $128.96.

The dresses were not introduced in evidence.

In our recent case of Character v. State, 51 Ala.App. 589, 287 So.2d 916, cert. denied 291 Ala. 775, 287 So.2d 919, it is said 'It is the law of this state that the unexplained possession of property does not raise the presumption that the property was stolen. There must be other evidence of the corpus delicti. When this has been shown, and the stolen property, soon after the offense, is found in possession of a person, who is unable to give a satisfactory explanation of his possession, then the jury is authorized to infer his guilt. Orr v. State, 107 Ala. 35, 18 So. 142; Buckles v. State, 291 Ala. 352, 280 So.2d 814 (1972).'

Here the Corpus delicti was shown by other evidence, and we think the facts and circumstances delineated above were sufficient in the absence of any explanation, for the jury to conclude that appellant had possession of the three dresses when the automobile was stopped and he was arrested. See Breazeale v. State, 51 Ala.App. 320, 285 So.2d 130. In Lawson v. State, 38 Ala.App. 322, 82 So.2d 812, the Court of Appeals, in an opinion by Presiding Judge Harwood, said:

'Possession is not limited to actual manual control upon or about the person. If under one's power and dominion the thing is possessed. That the appellant had knowledge of the presence of the stolen groceries can reasonably be inferred from his possession and control of the truck. Certainly, it was for the jury to so determine in the absence of any evidence by the appellant tending to justify his technical possession of the groceries.'

In view of the undisputed facts adduced by the prosecution, we think the trial court correctly denied the motion 'to exclude' made by appellant's counsel at the conclusion of the State's evidence.

At the conclusion of all the evidence, defendant did not request the general affirmative charge. There was no motion for a new trial.

The trial court did not err in...

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6 cases
  • Vogel v. State, 3 Div. 146
    • United States
    • Alabama Court of Criminal Appeals
    • 28 Octubre 1980
    ...the officers. Vincent v. State, 284 Ala. 242, 224 So.2d 601 (1969); Butler v. State, Ala.Cr.App., 380 So.2d 381 (1980); Packer v. State, 55 Ala.App. 30, 312 So.2d 601 (1975); Osner v. State, 54 Ala.App. 520, 310 So.2d 241 (1974), cert. denied, 293 Ala. 769, 310 So.2d 247, cert. denied, 423 ......
  • McCoy v. State, 6 Div. 123
    • United States
    • Alabama Court of Criminal Appeals
    • 3 Febrero 1981 must be viewed in the light most favorable to the State. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1969). Packer v. State, 55 Ala.App. 30, 312 So.2d 601 The State, in brief, argues that the following facts and circumstances corroborate the testimony of Thomas, Miller and Donah......
  • Woods v. State, 4 Div. 486
    • United States
    • Alabama Court of Criminal Appeals
    • 17 Noviembre 1976
    ...125 So. 688. Improper questions which are not answered are harmless. Strickland v. State, 269 Ala. 573, 114 So.2d 407; Packer v. State, 55 Ala.App. 30, 312 So.2d Appellant contends that the chain of possession relating to the pistol allegedly used in the robbery was not connected and it was......
  • Walker v. State, 6 Div. 168
    • United States
    • Alabama Court of Criminal Appeals
    • 6 Diciembre 1977 all we can review in considering whether the trial court correctly denied the motion to exclude the state's evidence. Packer v. State, 55 Ala.App. 30, 312 So.2d 601 (1975); Williams v. State, Ala.Cr.App., 340 So.2d 1144, cert. denied, Ex parte Attorney General, Ala., 340 So.2d 1149 From ......
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