Schofield v. State

• Decision Date: 07 October 1969
• Docket Number: 3 Div. 1
• Citation: 227 So.2d 822,45 Ala.App. 191
• Parties: Jimmy SCHOFIELD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 822

227 So.2d 822

45 Ala.App. 191

Jimmy SCHOFIELD v. STATE.

3 Div. 1.

Court of Criminal Appeals of Alabama.

Oct. 7, 1969.

Rehearing Denied Nov. 4, 1969.

Certiorari Denied Dec. 4, 1969. See 229 So.2d 26.

Williamson & Taber, Greenville, for appellant.

MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.

CATES, Judge.

Schofield appeals from a second degree burglary conviction on which he was sentenced to spend six years in the penitentiary.

I

For a statement of facts, we borrow, with some omissions, from Schofield's brief:

During the early morning hours of July 13, 1967, two police officers of the City of Greenville, Alabama, Joe Herring and Danny Joe Dukes, were working the night shift in a patrol car. At approximately 3:11 A.M., these officers received a radio call that the burglar alarm system at a manufacturing plant, Acme Industries, immediately North of the City had been activated.

The patrolmen proceeded to the plant, some 4 or 5 miles and pulled into the West side. Officer Herring got out of the patrol car on the West side of the plant and checked several doors on that side. He found all doors closed and was unable to discern anything inside the plant by shining his flashlight through the openings in the doors. He then returned to the patrol car and they drove around the plant to the East side. The patrolmen testified that, as they approached the third door along the East side, they observed Appellant, Jimmy Schofield, coming out. They identified Appellant as being dressed in a red shirt with dark trousers. The police officers also identified two other persons accompanying Appellant who were known to them. These other persons were Dan Kelsoe and Carson Kelsoe.

The officers testified that the door through which they saw Appellant leave the building was open three or four feet with a pipe propping the door up, and that the Appellant and his companions merely stooped down and came out through this open door.

The officers ordered the suspects to halt. This they did not do, but beat a hasty retreat to the South of the Acme plant. Officer Herring fired his shotgun at the fleeing trio two or three times. The officers did not pursue the culprits after firing at them. They then called Officer Pettus Chambliss and Officer Morris to assist them in the investigation of the crime, and they remained at the building until these other officers arrived.

Assistant Police Chief, Pettus Chambliss, assumed charge of the investigation. Several coin vending machines had been broken open. Along the path taken by the suspects, the officers found three shoes along with a quantity of change that had been wrapped in a white tee shirt. Rather than proceed immediately to arrest the suspects who had been so positively identified by the Officers Herring and Dukes, Officer Pettus Chambliss sought and obtained search warrants for a moroon or dark red shirt. He stated that the search warrants were executed but they were able to turn up none of the articles covered.

Appellant was ultimately arrested for the crime on July 18.

Appellant introduced witnesses who testified to the effect that they had seen him in Greenville on the night in question and that he was not dressed in a red shirt as described by the patrol officers. Appellant had remained in the general community, going about his day to day activities, between the time of the purported crime and the time of his arrest. At the end of Defendant's case, the Court recessed the jury until 9:00 A.M. the following morning and allowed the jury to separate.

II

Appellant's counsel has complied with Supreme Court Rule 9 as to giving a 'condensed recital of the evidence given by each witness in narrative form * * *.' This provision does not apply to appeals involving felonies or misdemeanors because the Rule limits the recital to an Assignment grounded on insufficiency of the evidence.

Code 1940, T. 15, § 389 provides:

'In cases taken to the supreme court or court of appeals under the provisions of this chapter, no assignment of errors or joinder in errors is necessary; but the court must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant.'

Such recital, therefore, neither adds to or takes from a criminal appellate brief.

III

The first claim of error is that the State failed to prove any breaking on Schofield's part. Reliance is put on Martin v. State, 44 Ala.App. 395, 210 So.2d 704.

In Martin, however, Price, P.J., was careful to point out:

'* * * The state's evidence shows that Ruth Hicks' four children were in the bedroom and her husband left the house about the time some of the others went to bed. The evidence does not negative the fact that one of these persons opened a door or window through which the accused entered the house.'

In the instant case, the State offered proof that the night foreman was the last to leave at the end of the night shift. This witness testified that he closed all the doors and set the burglar alarm. The burglar alarm would have sounded unless all the doors were closed. The alarm did not go off when he turned the switch for the alarm system.

We note that Officer Duke could hear the alarm clearly in and around the building. Flight and the dropping of the coins were also facets of the State's case.

We consider that the State adduced proof from which, if believed to the required degree, the jury could infer that Schofield had broken into and entered the building. Washington v. State, 44 Ala.App. 516, 214 So.2d 867(2).

IV

Without the consent of either the Appellant or his attorney, the jury was allowed to separate both during the luncheon recesses and the overnight recess of the trials.

Appellant claimed, in grounds 18, 19 and 20 of his motion for a new trial, that this act of the court was cause for reversal. At the hearing on this motion, the State attempted to show that during the separations, none of the twelve jurors spoke to anyone on any subject affecting the defendant's guilt and that no influences were exerted against any juror which would have biased his deliberation. Only nine of the jurors actually testified at this hearing but it was stipulated by the appellant at the beginning of the hearing that the other three jurors had not been influenced and had talked with no one concerning the case during the separation (R.p. 141). The motion for a new trial was denied by the trial court.

Mrs Sandra Peterson, a juror, testified during the hearing on the motion for new trial on cross-examination by Mr. Taber that, during a coffee break, she 'mostly sat out here and maybe went down in the basement, but mostly I sat out there with this woman, she was one...