Scott v. State
| Decision Date | 31 August 1979 |
| Citation | 374 So.2d 316 |
| Parties | Steven SCOTT v. STATE of Alabama. 78-284. |
| Court | Alabama Supreme Court |
Charles M. Law, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State, appellee.
This is an appeal from an adjudication of delinquency in the Montgomery Circuit Court, Domestic Relations Division, Juvenile Section. Scott was found to have committed the offense of buying, concealing or receiving stolen property. Appeal was taken directly to this court pursuant to Alabama Rule of Juvenile Procedure 28.
On November 18, 1978, Michael Cherry, Steven Scott, Norman Jones and Morris Johnson drove to the Montgomery Mall in a car belonging to Steven Scott. Scott, Jones and Cherry were seventeen years old at the time. Although there is some dispute about what then happened, the evidence tends to establish that the four boys proceeded to J. C. Penney's. There, Morris Johnson took a shirt off a rack and concealed it in his pants while the other three huddled around to hide his actions from view. A jacket was also taken in the same manner. Morris Johnson then left the Mall and was apprehended in the parking lot by a security officer of J. C. Penney's. Johnson removed the shirt from Scott's car and followed the security officer back to the entrance of the Mall where they encountered the other three boys.
Two petitions were originally filed against appellant, one charging him with larceny and one with buying, concealing or aiding in concealing stolen goods. Before the commencement of the trial, the state elected between the two petitions and chose to proceed with the "Buying, receiving, concealing, etc., stolen property." charge. Code 1975, § 13-3-55. At the close of the state's case, counsel for the appellant moved to exclude the evidence. The trial judge entered an order finding the appellant guilty of "Buying, receiving, concealing, etc., stolen property." This appeal followed.
Did the evidence introduced at trial support the allegations of the delinquency petition? If not, must the adjudication of delinquency be overturned? These are the issues before us.
Under our Juvenile Code, the delinquency jurisdiction of the juvenile court is restricted solely to cases in which the juvenile has committed a crime under the laws of this state, or under the laws of another state in which the act is committed, or under federal law or where the juvenile has violated a municipal ordinance. Code 1975, § 12-15-1(8), (9). The delinquency petition must specifically allege the acts which bring the juvenile within the court's jurisdiction. Code 1975, § 12-15-65(b). At the hearing, it must be proved beyond a reasonable doubt that the juvenile committed the acts ascribed to him or her, and this finding must be based on evidence which is competent, relevant and material. Code 1975, § 12-15-65(d). If the court finds that the allegations in the petition have not been established, it must dismiss the petition. Code 1975, § 12-15-65(c). Thus, our juvenile statute echoes the general common-law principle of due process which requires the reversal of a conviction where there is a material variance between the allegations and the proof. See, e. g., Wideman v. State, 269 Ala. 49, 110 So.2d 298 (1959); Taylor v. State, 47 Ala.App. 285, 253 So.2d 354 (1971). If the evidence introduced at trial was insufficient to establish a prima facie case of "Buying, receiving, concealing, etc., stolen property," the adjudication of delinquency must be reversed, although the evidence would support a charge of larceny.
It is clear from the transcript that such is the case. Larceny is often defined as the felonious taking and carrying away of personalty of another with intent to convert it or deprive the owner thereof. Davidson v. State, 351 So.2d 683 (Ala.Cr.App.1977). To establish the offense of "Buying, receiving, concealing, etc., stolen property." (Emphasis Added) Johnson v. State, 41 Ala.App. 351, 352, 132 So.2d 485, 486 (1961). In 76 C.J.S. Receiving Stolen Goods § 14(b), the rule is stated that:
" . . . where one steals goods under such circumstances that the receiving thereof is a part of the theft itself, he cannot be convicted of receiving the stolen goods. Likewise, one who has stolen property jointly with another, that is to say, who jointly with another takes part in the caption and asportation of the property, cannot properly be convicted of receiving stolen property. . . . "
Here, the appellant actually participated in the theft. Although he did Conceal the goods by screening them from view with his body, it was...
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