Stewart v. State, 1 Div. 42

• Decision Date: 18 December 1979
• Docket Number: 1 Div. 42
• Parties: Jerry Lee STEWART v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 214

381 So.2d 214

Jerry Lee STEWART v. STATE.

1 Div. 42.

Court of Criminal Appeals of Alabama.

Dec. 18, 1979.

Rehearing Denied Jan. 22, 1980.

Thomas M. Haas, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of grand larceny. The property was described in the indictment as "one John Deere tractor, of the value of $15,000 the personal property of John Schaff." He was sentenced to imprisonment for six years.

The corpus delicti was unquestionably established by the testimony of John M. Schaff, the owner of the tractor, who said that it was stolen at Foley, in Baldwin County, on November 1, 1977.

The recovery of the stolen tractor was unquestionably established by the testimony of Baldwin County Deputy Sheriff Joe Rizzo, who testified that on February 23, 1978, he recovered the identical tractor at or near Grove Hill, Clarke County.

Willie Sheffield, called as a witness by the State, testified that about ten thirty on a morning between November 30, 1978, and January 1, 1979, defendant drove a truck that brought the particular tractor to his "place just south of Grove Hill." He said he paid sixty-five hundred dollars in cash. He said he did not pay Jerry Lee Stewart for the tractor but that he paid Ricky Day for it "in front of everybody else." He said he had never seen defendant before that occasion, on which he was introduced to him. He further testified that he also had been indicted for stealing the truck, but that he did not know that the truck was stolen at the time he purchased it.

After Sheffield had testified, the State rested, and defendant moved to exclude the evidence, which motion was overruled. Appellant insists that the only evidence against him at that time was the uncorroborated testimony of an accomplice. Even though Sheffield had been indicted for the same offense as appellant, that fact alone did not make him an accomplice. Bridges v. State, 52 Ala.App. 546, 295 So.2d 266, 271 (1974).

Although there was evidence indicating some guilt on the part of Sheffield of the crime of buying, receiving or concealing stolen property, there was none to indicate that he was a participant in the theft of the property. That one is guilty of buying stolen property does not make him an accomplice of the thief. Rice v. State, Ala.Cr.App., 365 So.2d 1007, cert. denied Ala., 365 So.2d 1010 (1978).

There was substantial evidence of defendant's guilt, and the court was not in error in overruling defendant's motion to exclude the evidence.

After the court's denial of the motion to dismiss, defendant called Willie Sheffield as a witness, who then testified that the man who drove the truck with the tractor on it to Clarke County and whom he identified as Jerry Lee Stewart, looked some different from the way defendant looked in court. He said:

"Yes, sir, I would say a little different. Hair was a little longer and maybe a little stringier, a little longer than it is now."

Ricky Day testified as a witness for the defendant that he had never been with Jerry Stewart at any time in Clarke County. He said he had known the defendant all of the life of the witness, that he had never been with Stewart "when he might have met Willie Sheffield." He said he had never sold Sheffield a tractor. He had also been indicted for stealing the particular tractor.

Bill Hinote, also a co-defendant as to the larceny of the tractor, testified that he knew both Willie Sheffield and Jerry Stewart, but that he had never gone with Jerry Stewart to Clarke County and that Jerry Stewart was not "involved in a sale of a tractor to Willie Sheffield." On cross-examination, Hinote was interrogated as to some purportedly self-contradictory statements by him, in part as follows:

"Q. You never did that, you never went up there (Clarke County) and told him (Sheffield) that you were a John Deere representative?

"A. No, sir.

"Q. Did you ever make a statement that you had gone up there and told him you were a John Deere factory representative?

"A. No, sir.

"Q. Did you ever make a statement that you and Ricky Day had sold him a John Deere tractor? Do you recall making the statement to Joe Rizzo?

"A. No, sir. Do I recall him telling me what to say. I recall him talking to me about it.

"Q. You didn't make the statement to him?

"A. No, sir.

"Q. You didn't tell him that you went to Foley and looked at some tractors and took the key when the salesman wasn't looking out of a 2840 and later you and Jerry Stewart went to Clarke County and stole it?

"A. No, sir, did I sign that, sir?

"Q. No.

"THE COURT: You answer his question.

"MR. NORTON:

"Q. You say you never made that statement?

"A. No, sir."

The defendant took the stand and denied having any knowledge of and taking any part in the larceny of the tractor. He said he had never known Sheffield, but that he did know Ricky Day and Bill Hinote.

After defendant rested, the State recalled Officer Joe Rizzo. Thereafter, a large part of the record is devoted to the State's interrogation of the witness as to a lengthy statement in printed and written form, which became the State's Exhibit 1, which interrogation was interspersed by objections by defendant and rulings of the court, which resulted in the admission, over defendant's objection, of State's Exhibit 1. State's Exhibit 1 consists of seven pages of printed and handwritten material, the printed material on each page being the same and consists of the caption "VOLUNTARY STATEMENT" and what purports to be the form used in taking confessions or incriminating statements from an accused, with an acknowledgment in detail of its voluntary character and a waiver of the right to talk with an attorney. Some of the blank spaces in such statement are filled in with the time thereof, February 28, 1978, the name of Bill Hinote as the one making the statement, and the person and office of the one to whom the statement was made, Deputy Sheriff Joe Rizzo, who signed each page of the statement as a witness. On each page of the statement is a place for the "Signature of person giving voluntary statement," but thereunder in each instance is the handwritten statement, "Refused to sign." In the interrogation of Officer Rizzo it was shown that he, by his own hand, placed in the exhibit all of the handwritten material therein, that Hinote consistently refused to sign, but that Hinote voluntarily, and after appropriate warning, gave Officer Rizzo an oral statement in question (by Officer Rizzo) and answer (by Hinote) form, which the witness said he recorded in State's Exhibit 1 at the time, as the statement of Hinote. The record is in pertinent part as follows:

"Q. Did you record that statement as it was made to you?

"A. Yes.

"MR. GRANADE: Your Honor, we object to this. This is simply irrelevant in this case, completely irrelevant, it couldn't have anything to do with Jerry Stewart's guilt or innocence, this statement.

"MR. NORTON: It was to impeach the credibility of one of the Defendant's witnesses."

The court then excused the jury. While the jury was out a two-page colloquy of the court and attorneys for the respective parties occurred, during which the court overruled some objections by defendant, but indicated that they should proceed in the presence of the jury with the interrogation of Officer Rizzo and that it would consider any further objections by defendant as to the statement of Hinote.

Upon resumption of the testimony of Officer Rizzo and some further testimony by him as to the time and place and circumstances the statement by Hinote was made, the record shows:

"Q. Did you sign each and every page to it?

"A. Yes, sir.

"Q. We would offer this as State's Exhibit No. 1.

"MR. GRANADE: Same objection.

"THE COURT: Are you objecting to it on the same grounds that you previously stated?

"MR. GRANADE: We are also objecting to the introduction on the best evidence rule.

"THE COURT: Any other grounds?

"MR. GRANADE: As well as the grounds we set out earlier.

"THE COURT: Overrule the objection. It is ordered admitted."

We find no authority or justification for the admission in evidence of State's Exhibit 1. The correct trail was blazed in Vastbinder v. Metcalf, 3 Ala. 100 (1841), clearly marked in Acklen's Executor v. Hickman, 63 Ala. 494 (1879), and has since been firmly established in Alabama. Sovereign Camp W. O. W. v. Screws, 218 Ala. 599, 119 So. 644 (1928); Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948); Bennefield v. State, 281 Ala. 283, 202 So.2d 55 (1967). In Acklen's Executor, supra, at 498, it is stated:

"The law recognizes the right of a witness to consult memoranda in aid of his recollection under two conditions: First, when, after examining a memorandum made by himself, or known and recognized by him as stating the facts truly, his memory is thereby so refreshed that he can testify, as a matter of independent recollection, to facts pertinent to the issue. In cases of this class, the witness testifies to what he asserts are facts within his own knowledge; and the only distinguishing difference between testimony thus given, and ordinary evidence of facts, is that the witness, by invoking the assistance of the memorandum, admits that, without such assistance, his recollection of the transaction he testified to, had become more or less obscured. In cases falling within this class, the memorandum is not thereby made evidence in the cause, and its contents are not made known to the jury, unless opposing counsel call out the same on cross-examination. This he may do, for the purpose of testing its sufficiency to revive a faded or fading recollection, if for no other reason.

"In the second class are embraced cases in which the witness, after examining the memorandum, can not testify to an existing knowledge of the fact, independent of the memorandum. In other words, cases in which the memorandum fails to refresh and revive the...