Simpson v. State

• Decision Date: 06 December 1977
• Docket Number: 7 Div. 549
• Parties: Terry SIMPSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 317

354 So.2d 317

Terry SIMPSON v. STATE.

7 Div. 549.

Court of Criminal Appeals of Alabama.

Dec. 6, 1977.

As Corrected On Denial of Rehearing Jan. 24, 1978.

Loma B. Beaty, Fort Payne, Terry T. Bush, Rainsville, for appellant.

William J. Baxley, Atty. Gen., and Winston D. Durant, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

The appellant, Terry Simpson, was indicted by the Grand Jury of DeKalb County in December 1974 for buying, receiving and concealing stolen property. On November 3, 1975, prior to the impaneling of a jury, the case was nol-prossed at the request of the State, without leave of court to reindict the defendant. In January 1976, Simpson was reindicted for the same offense. In February 1977, Simpson was convicted by a jury for buying, receiving or concealing stolen property and sentenced to three years incarceration.

This case arose from the disappearance of thousands of bricks from Jenkins Brick Sales in Birmingham, Alabama, a subsidiary of Jenkins Brick Company, Inc., located in Montgomery, Alabama. In order to track down the missing bricks, James M. Speigner, a salesman for Jenkins, was told by his superiors to observe all construction sites in his sales territory. Whenever he came upon a site using Jenkins brick, he inquired to make sure the brick had been properly purchased.

On September 27, 1974, Speigner was in Sylvania, DeKalb County, Alabama. At the office and residence of appellant, Speigner found 8,000 dark brown Williamsburg bricks, a distinctive brick manufactured by Jenkins. Appellant told Speigner he had shipped 22,000 of the same kind of brick to a local job site. Speigner then stated that according to his company records, Jenkins had sold appellant only 21,000 dark brown Williamsburg bricks. When Speigner asked for an explanation of the existence of the bricks for which Jenkins had no record of sale, appellant first responded that it was none of Speigner's business. However, after Speigner called his home office and the DeKalb County sheriff, appellant told Speigner he knew the bricks had been stolen but could not reveal the identity of the person or persons who had sold him the bricks because he feared for his life. Later that day, by telephone, appellant told Mr. Charles B. Young, Jenkins' executive vice president, that the unaccounted for bricks were stolen, but again refused to reveal the identity of the thief.

Sometime later, Mr. Young met appellant at a cafe in Cordova, Alabama. At that time, appellant said a man named Wally Finch sold him the bricks which he picked up from behind an abandoned service station and left $150.00 in a jar. Young testified that appellant later changed his story again and said he bought the Jenkins bricks from a disinterested party in Anniston.

I

Prior to trial, counsel for appellant filed a pleading entitled "Plea in Abatement," in which he alleged that the grand jury which returned the 1976 indictment was not properly constituted. However, the bulk of the pleading dealt with the nolle prosequi of the 1974 indictment without leave to reindict the defendant and alleged that the offense charged in the indictment was therefore "res judicata," which we take to mean former jeopardy. The State responded with a pleading entitled "Motion to Strike Defendant's Plea in Abatement," which alleged that the 1974 indictment had been nol-prossed because of a misnomer of the Jenkins Brick Company and stated appellant had "shown no evidence of res judicata." After hearing argument of counsel on the plea in abatement and the motion to strike, off the record and out of the presence of the jury, the trial court granted the State's motion to strike. Appellant claims the trial court erred by not allowing the question of his former jeopardy to be tried by the jury. The State contends that a plea in abatement is not the proper way to raise former jeopardy.

It has long been the law in Alabama that the issue of former jeopardy must be raised by special plea. DeArman v. State, 77 Ala. 10 (1884); Rickles v. State, 68 Ala. 538 (1881); Steward v. State, 55 Ala.App. 238, 314 So.2d 313, cert. denied 294 Ala. 201, 314 So.2d 317 (1975). We think appellant complied with this requirement. Although his pleading was entitled "Plea in Abatement," and although one count challenged the grand jury, nevertheless the substance of the pleading clearly raised a former jeopardy issued based on the nolle prosequi of the first indictment. Title 15, § 282, Code of Alabama 1940 (Recompiled 1958) provides:

"In criminal proceedings, a plea is to be determined according to its substance, and not by its commencement or conclusion."

That the pleading was entitled "Plea in Abatement" rather than "Plea of Former Jeopardy" does not make the plea invalid.

Appellant is correct in his contention that the question of his former jeopardy should have been submitted to a jury. Parsons v. State, 179 Ala. 23, 60 So. 864 (1913); Garsed v. State, 50 Ala.App. 312, 278 So.2d 761 (1973). However, the trial court's error in determining the former jeopardy issue itself, rather than submitting it to the jury, is not reversible error where there is no injury to the defendant. Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973); Kilpatrick v. State, 46 Ala.App. 290, 241 So.2d 132 (1970). Here, appellant was not prejudiced by the trial court's action because his claim of former jeopardy was unfounded.

The basis of appellant's claim of former jeopardy was the nolle prosequi of the first indictment against him. His theory appears to be that a nolle prosequi constitutes an acquittal of the person indicted, and thus he cannot be brought to a second trial. We disagree.

When the 1974 indictment was nol-prossed, appellant had not yet been put in jeopardy. In Alabama, jeopardy attaches when a jury has been charged with the trial of a defendant, i. e. when the jury has been impaneled and sworn in a court of competent jurisdiction, the defendant has pled to the indictment, and the indictment has been read to the jury. Boswell v. State 290 Ala. 349, 276 So.2d 592 (1973), cert. denied 414 U.S. 1118, 94 S.Ct. 855, 38 L.Ed.2d 747 (1974); Spencer v. State, 48 Ala.App. 646, 266 So.2d 902 (1972); Garsed v. State, supra. The nolle prosequi of an indictment is not exempt from this general rule. In Whitaker v. State, 21 Ala.App. 114, 115, 105 So. 433, 434 (1925) the Court of Appeals stated:

". . . When a nol. pros. is entered before the defendant has been placed in jeopardy, its only effect is to end that particular prosecution, and does not absolve defendant from liability to further prosecution for the same offense. . . ."

II

Appellant contends that the State failed to prove that the bricks specified in the indictment had been stolen rather than embezzled.

The law in Alabama is that, ". . . before one can be convicted for receiving or concealing stolen property, it must be shown by the required measure of proof that the property in question was stolen." Coates v. State, 36 Ala.App. 371, 373, 56 So.2d 383, 384 (1952). However, the State is not limited to eyewitness testimony in proving larceny.

The State may prove the elements of the offense in question by circumstantial evidence. The jury then determines whether the offense was committed. In Tyler v. State, 17 Ala.App. 495, 496, 86 So. 93, 94 (1920) the court said:

" . . . All of these necessary ingredients may be, and most of them usually are, shown by circumstantial evidence, from which the jury, using their everyday common sense and observation, must draw their conclusions."

The same court stated in Wright v. State, 17 Ala.App. 621, 622, 88 So. 185, 186 (1920):

" . . . We are not unmindful that the corpus delicti may be proved by circumstantial evidence, and if the evidence adduced affords an inference that a larceny has been committed the question of its sufficiency is for the jury. . . . "

Evidence that the property listed in the indictment disappeared from the owner's premises without the owner's knowledge or consent has been held sufficient for the jury to infer that the property was stolen. Smitherman v. State, Ala.Cr.App., 340 So.2d 896, cert. denied 340 So.2d 900 (Ala.1976); Scott v. State, 55 Ala.App. 318, 314 So.2d 921 (1975); Tanner v. State, 37 Ala.App. 256, 66 So.2d 827 (1952) (cert. granted 259 Ala. 306, 66 So.2d 836 (1953) reversed on other grounds).

Here the fact that several thousand bricks had disappeared from Jenkins Brick Sales in Birmingham was undisputed; appellant himself testified to that. It is clear from the testimony of Speigner and Young that the bricks were taken without the knowledge and consent of the company and that the company considered the bricks to have been stolen rather than embezzled. Furthermore, both men testified that the appellant admitted having knowledge that the bricks were stolen. Thus, there was ample evidence from which the jury could infer that the bricks were stolen property at the time they came into appellant's possession. Since there was ample evidence to support a finding by the jury that the property was indeed stolen, there must also be evidence that the appellant possessed the bricks, knowing them to have been stolen or having reason to believe they had been stolen. The fact that the appellant admitted to both Speigner and Young that he knew the bricks were stolen was sufficient to supply the latter element of the offense.

III

During closing arguments, counsel for appellant made the following objection which was overruled by the trial court:

"If the Court please, we object to the argument that maybe, perhaps he bought and received and concealed many more thousand than alleged in the indictment. It's highly improper and an attempt to get the jury to act on speculation on something that there's no evidence whatsoever."

There is no evidence in the record that appellant ever had any contact with stolen bricks other than the bricks in question, nor could such an inference be drawn. Here, we must...