Phillips v. State, 6 Div. 47
| Decision Date | 29 November 1983 |
| Docket Number | 6 Div. 47 |
| Citation | 446 So.2d 57 |
| Parties | Larry Richard PHILLIPS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Harold P. Knight, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
This is an appeal from a judgment of conviction and sentence to imprisonment for fifteen years on a jury trial, in which the jury found defendant guilty of theft in the first degree as charged in an indictment in which defendant was alleged to have "knowingly obtained or exerted unauthorized control over the 1982 Freightliner truck, Serial Number: IDUPYDYB3CH208084, the property of Owel Newman, of the value of an amount in excess of $1,000.00, with the intent to deprive the owner of said property, in violation of § 13A-8-3 of the Code of Alabama....." Code of Alabama 1975, § 13A-8-3 provides:
Under the heading in his brief of "ISSUES PRESENTED FOR REVIEW" appellant enumerates and sets forth ten separate issues. Appellee's brief contains a restatement of what it deems to be the issues presented and by doing so enumerates eight issues. Perhaps the difference between the parties as to the number of issues presented on appeal is due, partly at least, to the fact that some of the issues presented and separately treated in appellant's brief, are jointly treated in appellee's brief. Furthermore, appellant contends that there was a material variance between the indictment and the proof as to the number and ownership of the "Freightliner truck," but he makes no contention that the evidence in the case was not sufficient to present a jury issue as to the defendant's guilt of theft in the first degree of a "Freightliner truck."
Although appellant's brief contains a two-page statement under the caption "STATEMENT OF THE FACTS," the brief does not contain a recital of the evidence bearing on the question of defendant's guilt or innocence of theft in the first degree of a Freightliner truck in the manner charged in the indictment. Therefore, we think it unnecessary for us to summarize such evidence as to that question. We limit our references to the evidence to the portions thereof that pertain to the specific issues raised on appeal, which we now proceed to define and determine.
The undisputed evidence shows that on May 22, 1982, a Freightliner truck was missing from the place of business maintained by its owner in Fayette County and that on May 25, 1982, parts of it were discovered in Walker County while they were on the premises owned by defendant. Law enforcement authorities of both Fayette and Walker County participated in the search of the premises that resulted in the discovery and seizure of some of said truck parts. No warrant was issued for the search.
Defendant operated a "shop" on the premises owned by him. The premises owned by him were adjacent to the home and premises of his father. Law enforcement authorities had obtained information to the effect that some of the parts of the missing Freightliner truck were on or about the premises searched. At the time of the search, the defendant and his brother were working on a truck. At that time, there were other trucks and truck parts on or about the same premises. Before any search was conducted, one of the officers had seen defendant's father, whom the officer had known for many years, while defendant's father was driving down the road near his home. This officer testified:
Counsel for both parties on appeal cite authorities in support of their respective positions as to whether the warrantless search was in violation of defendant's constitutional right to security "against unreasonable searches and seizures." In none of the cases cited were the facts so nearly the same as the facts in the instant case that we can say that it is dispositive of the issue now presented. Even though neither the consent of defendant's father nor the "okay" uttered by defendant rendered the search valid, we think that, when considered together under all of the circumstances existing in the instant case, they are sufficient to establish the validity of the search.
"... Muegler v. Crosthwait, Mo.App. 179 S.W.2d 761, 763 (1944).
Appellant endeavors to fortify his position by citations of and quotations from authoritative cases to the effect that in relying upon consent to an otherwise invalid search and seizure, the State has the burden of proving clearly, unequivocally and convincingly that consent was voluntarily given and that the claimed consent was not merely acquiescence. The latest Alabama case cited by appellant is Lietz v. State, 291 Ala. 133, 135, 279 So.2d 116, 117 (1973), in which it is stated:
We recognize the quoted principle as controlling. In our endeavor to follow it, we note that the facts in that case are materially different from the facts presented in this case, particularly so in the outstanding fact in the cited case that there was not even acquiescence in the search but an unequivocal declaration by defendant that the officer could not go into defendant's house, and that in the case under consideration there was no protest by word or action of defendant or anyone else against the search.
The most nearly similar case, in one respect only, to the present case, but dissimilar in one material respect, cited by appellant, is United States v. Marra, 40 F.2d 271 (D.C.1930), in which it is stated:
."
According to the court reporter's transcript of the evidence herein, the defendant's father was the owner of a large amount of contiguous acreage on which a brick home was maintained by him and his wife, who, about eight years before the prosecution herein commenced, deeded approximately nine acres to defendant and defendant's wife, which consisted of almost a perfect square of land on which a shop of defendant was erected. The boundary line between the defendant and his wife and the property of defendant's father was not readily discernible. Apparently, there was no effort upon the part of any of the immediate family of either to keep any of the others from crossing the boundary line. There were trucks and parts of trucks mostly on the land of defendant, it seems, but not so placed thereon as to distinguish the ownership or proprietorship of his land from the land of defendant's father. The defendant did not live on any of this land. There was some evidence to the effect that he and his wife planned to move thereon, but they had not done so. Of some interest perhaps, but not of great significance, is the fact that after the prosecution against this appellant and others referred to in the transcript as co-defendants, but not included in the indictment in this case (one, at least, of which co-defendants was a brother of this appellant) this appellant and his wife executed a deed by which they deeded the mentioned nine acres of land back to this appellant's father. The father testified that this was not a gift to ...
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