Richardson v. State, 3 Div. 88
Decision Date | 04 September 1979 |
Docket Number | 3 Div. 88 |
Citation | 374 So.2d 433 |
Parties | Danny Lamar RICHARDSON v. STATE. |
Court | Alabama Court of Criminal Appeals |
James R. Cooper, Jr., Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and William J. Benton, Jr., Asst. Atty. Gen., for appellee.
The defendant was indicted and convicted for the grand larceny of $450.00 from a Zippy Mart in Montgomery, Alabama. Youthful offender treatment was denied and the defendant was sentenced to three years' imprisonment at the Frank Lee Youth Center.
Initially the defendant contends that the jury's verdict was against the great weight of the evidence because no one saw the defendant actually take the money and because of the weakness of the identification testimony.
Basically the State's evidence reveals that on September 7, 1978, the manager of Zippy Mart was counting the store's money in making up a bank deposit. She left the counter and went to another part of the store to help a customer, leaving the money in an unlocked bank deposit bag on the counter. The defendant was in the store looking at some sunglasses or magazines during this time.
Away from the counter, the manager heard a "drop" and "instantly knew it was the money bag". She saw the defendant near the money and saw him running out the door.
A customer also identified the defendant as being in the store. He observed the defendant right inside the front door and saw him "put his finger over his mouth" in a gesture of silence to a female customer who was entering the store. The defendant was "moving fast" and ran towards his house once he got out of the store.
The manager immediately checked the money and found that the cash was missing. The defendant was the only person who had left the store.
This evidence was sufficient to sustain the defendant's conviction for grand larceny. The crime of larceny is secret in nature and frequently must be proved by circumstantial evidence. Poole v. State, 28 Ala.App. 37, 38, 178 So. 238, cert. denied, 235 Ala. 216, 178 So. 240 (1938). The State is not limited to eyewitness testimony in proving larceny, but may prove the elements of the offense by circumstantial evidence. Simpson v. State, 354 So.2d 317 (Ala.Cr.App.), cert. denied, Ex parte Simpson, 254 So.2d 324 (Ala.1977). The inferences to be drawn from the circumstances present in this case were sufficient to warrant the jury in returning the verdict rendered and to sustain the judgment of conviction. Bell v. State, 364 So.2d 420 (Ala.Cr.App.), cert. denied, Ex parte Bell, 364 So.2d 424 (Ala.1978); Melson v. State, 38 Ala.App. 514, 88 So.2d 851 (1956).
The manager of the store, Aleta Sexton, was not positive in her identification of the defendant.
Were Ms. Sexton's the only identification made of the defendant, this Court would have serious reservation about the sufficiency of the evidence to support the conviction. However, another witness, who had known the defendant for some time, also placed the defendant in the store at this precise time. His identification was positive.
The fact that a State witness does not positively identify the accused does not vitiate that witness' testimony. The hesitancy of a witness in identifying a defendant is a matter of consideration of the jury in passing upon the weight of such testimony. Gholston v. State, 338 So.2d 454, 459 (Ala.Cr.App.1976).
There was no direct testimony by any witness that the defendant took the money. However witness Steve Thompson, after having been cautioned out of the jury's presence not to make the specific statement objected to, stated that, immediately after the defendant left the store and motioned to a customer to remain silent, a lady came in and said "he has taken all the money". Defense counsel's objection was sustained by the trial judge's instructions to the jury to disregard the remark. Defense counsel did not request any further corrective action. The States rested after the witness finished testifying. Then defense counsel moved to suppress the State's evidence and moved for a mistrial The Court denied this motion in light of its admonition to the jury.
While Thompson's "inadvertent slip" was prejudicial to the defendant, we cannot state that it deprived the defendant of a fair trial in view of the trial judge's instructions to the jury. If the trial judge acts...
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