Scott v. State

• Decision Date: 05 July 1983
• Docket Number: 1 Div. 535
• Citation: 460 So.2d 1364
• Parties: Alvin SCOTT v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 1364

460 So.2d 1364

Alvin SCOTT v. STATE of Alabama.

1 Div. 535.

Court of Criminal Appeals of Alabama.

July 5, 1983.

Rehearing Denied Aug. 2, 1983.

W.E. Garrett, Atmore, for appellant.

Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Alvin Scott was indicted for theft in the second degree, in violation of § 13A-8-4, Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment". Following a habitual offender hearing, the appellant was sentenced to life imprisonment in the penitentiary.

Mrs. Ernest Weekley owns Weekley's Grocery Store in Perdido, Alabama. On Friday, January 15, 1982, the Gulf Oil Corporation delivered gasoline to the two underground gasoline tanks situated beside Mrs. Weekley's store.

Mrs. Weekley received a call early Saturday morning, January 16, 1982, from one of the people who live near her store. As a result of that call, Mrs. Weekley went to her store and discovered that a quantity of gasoline was missing from the regular storage tank.

Mrs. Weekley testified that the gasoline was stolen on January 16, 1982, but the sheriff's office wrote it up as occurring on January 19, 1982.

The wholesale value of the gasoline that Mrs. Weekley discovered missing was stated as nineteen and a quarter cents per gallon (.1925 gal.).

Betty Hall testified she lives across the street from Weekley's Grocery Store. On January 19, 1982, Mrs. Hall was awakened by a phone call from one of her neighbors, Janet Bush.

After she received the call, Mrs. Hall looked out of the side door of her house and saw a pickup truck with a pump and tank on the rear thereof and a man walking and smoking in front of Mrs. Weekley's store.

Soon thereafter, she saw Buddy Bryars drive up to the store. Mrs. Hall heard the man say, "Hey, Buddy, what are you doing?" (R. 37). At this point Bryars backed up his vehicle. The man then walked over to Bryars' car, leaned in the window and said something and then Bryars drove away.

Mrs. Hall saw another man and both of them got in the truck and left.

After the two men left, she and some other neighbors went over to Weekley's Grocery Store and waited for Mrs. Weekley and the Sheriff to arrive. She stated that they smelled gasoline and took the top off of the gasoline tank.

Mrs. Hall said she did not see a hose going into the tank and did not see any gasoline removed. She stated she knew the man that she had seen that night was the appellant because of his body build, the way he walked and his missing fingers.

William E. Bush testified he lives next to Weekley's Grocery Store. On January 19, 1982, at approximately 12:30 or 1:00 a.m., Bush was awakened by his wife who told him someone was at Weekley's store. Bush told his wife to call the Sheriff and one of their neighbors, Clifford Hall, and then went outside. He saw two men and a "work type" pickup truck with a gas tank and a pump mounted in the bed. The truck was parked by the gasoline storage tank at Mrs. Weekley's store. One of the men was standing beside the place where the tank is filled and the other man was walking around. Bush did not recognize either of the men.

Once Bush was outside, he realized his gun did not have any shells, so he went back to his house, loaded the gun and went outside again. He saw Buddy Bryars drive up to the store. Bush decided to get into his truck and drive over to Mrs. Weekley's store. When he got there, he asked Bryars what was happening.

After his conversation with Bryars, he went home. Bush saw the two strange men remove a hose from the gasoline tank, put it in the truck and then leave. Bush then went back to Weekley's store and Mrs. Weekley, Bryars and the Sheriff were there.

Bush stated the appellant was one of the men he saw that night at Weekley's store.

Hubert Lee Bryars (Buddy) testified he is an assistant deputy for the Baldwin County Sheriff's Department. On January 19, 1982, he received a call from the jail, and he was supposed to go to Perdido to see if he saw anybody.

He drove to Weekley's Grocery Store and saw the appellant there with his pickup truck. When Bryars got out of his vehicle, the appellant said, "Buddy, if I hadn't recognized you, I would blow your s______ away." (R. 89). The appellant stated it would take about two seconds to light the dynamite.

Bryars saw the other man but did not recognize him. After talking to Bush when he drove up, Bryars then left and returned when the Sheriff arrived. Bryars stated that he told the Sheriff he did not know the man because the appellant had threatened to kill him and his family if he told on them.

Bryars told the Sheriff that the appellant was one of the men he saw that night, after he was called to the jail to sign a bond because he was withholding state's evidence.

Larry Shivers testified that the appellant came to his house sometime in mid-January, 1982. The two men drove around and went to Weekley's Grocery Store in Perdido and stole some gasoline. The appellant was the look-out and Shivers did the pumping.

Shivers stated that while they were there, Buddy Bryars drove up. A pickup truck also stopped at the store but he did not know who was in it.

Shivers stated he had been charged in the theft. The two had been to Weekley's Grocery Store on other occasions and had stolen gasoline.

Jimmy Varnum testified that Buddy Bryars told him that he thought that one of the men involved in the theft was Shivers, but he did not know the other man.

Millard Richard McCall testified that one night at the Dixie Fort Motel in Atmore, he heard the appellant tell Bryars he had loaned his truck out. Bryars told the appellant the police were looking for his truck and the appellant said he would find it.

Jerry Spann testified Bryars told the appellant that his truck had been seen in Perdido and the police were looking for him.

James Hadley stated that Bryars asked him if he had heard about the gasoline theft. When Hadley stated that he had, Bryars told him that he could identify Shivers that night but not the other one.

The appellant denied he was at Weekley's Grocery Store on January 19, 1982. He stated he had loaned his truck to Shivers on that date. The appellant found out about the theft when Bryars came to his room at the Dixie Fort Motel and told him the police were looking for him. The appellant also denied threatening Bryars.

I(a)

The appellant contends the evidence in this case was insufficient to sustain a conviction of theft in the second degree.

In order to support a conviction in the case at bar, the prosecution had the burden of establishing by a preponderance of the evidence: (1) the ownership of the property; (2) that the said property was taken from the building; (3) the value of the property; (4) that the appellant did the taking or aided and abetted in the alleged taking; and (5) the time and venue of the commission of the act. See Stuckey v. State, 28 Ala.App. 83, 180 So. 116 (1938); see also McMickens v. State, 16 Ala.App. 78, 75 So. 626 (1917).

There is no question here concerning the ownership of the property taken. The evidence was undisputed that the gasoline found missing from the underground storage tank was the property of Mrs. Weekley.

Section 13A-8-4(e), Code of Alabama 1975 states: "The theft of property which exceeds $25.00 in value, and which is taken from or in a building where said property is sold or stored, constitutes theft of property in the second degree."

Obviously, in the case at bar, the gasoline or "property" was stored in the underground gasoline storage tank. The issue we confront is what type of structure constitutes a "building" under the above statute. The appellant points out that "building" is defined by § 13A-7-1(2), Code of Alabama 1975 as: "Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods ..." (The same definition is found in § 13A-3-20 and § 13A-7-40, Code of Alabama 1975).

There are several reasons why we believe the legislature did not intend the above definition of "building" to apply in relation to theft offenses.

First, the legislature did not include the above-referenced definition in the definition section preceding the theft offenses. Therefore, we must assume the legislature intended the definition to apply only to chapters in which the definition was included, but not to every chapter in which the word was used.

Second, the word "building" as applied to the burglary (Ala.Code, § 13A-7-1(2) (1975)), arson (Ala.Code, § 13A-7-40 (1975)), and justification and excuse (Ala.Code, § 13A-3-20 (1975)) statutes has a different meaning than the use of the word in the theft statute. Traditionally, burglary is an offense against the security of habitation and arson is an offense against the building itself. See Chaney v. State, 225 Ala. 5, 142 So. 104 (1932); Washington v. State, 290 Ala. 344, 276 So.2d 587 (1973). In the justification and excuse section of the Code, the word "building" is used in connection with one's right to use force in defense of his person and home against unlawful violence. See Russell v. State, 219 Ala. 567, 122 So. 683 (1929). Larceny, however, is an offense against the property. See Chaney v. State, supra. The significance of the word "building" is not as great in the theft statutes because the offense is not against the building itself or the security of the building but is against the property taken therefrom. The offense of larceny from a building developed as an aggravated form of simple larceny because such places had to be invaded to consummate the larceny. McCabe v. State, 1 Ga.App. 719, 58 S.E. 277 (1907).

Furthermore, even if the definition of "building" found in § 13A-7-1(2), § 13A-7-40 and § 13A-3-20, Code of Alabama 1975 applies to the use of the word in the theft statute, we believe that an "underground storage tank" would fall within that definition. Certainly, a gasoline storage...