Stiles v. State, 8 Div. 624

• Decision Date: 30 June 1975
• Docket Number: 8 Div. 624
• Citation: 55 Ala.App. 374,315 So.2d 609
• Parties: Robert Louis STILES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 609

315 So.2d 609

55 Ala.App. 374

Robert Louis STILES v. STATE.

8 Div. 624.

Court of Criminal Appeals of Alabama.

June 30, 1975.

Lammons, Bell & Sneed, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and William A. Golinsky, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was indicted and put to trial upon a three-count indictment charging: (1) burglary in the second degree, (2) grand larceny, and (3) buying, receiving, or concealing stolen property of the total and combined value of $295.00, taken from the Ruby Nell Restaurant, located at 2004 Pulaski Pike, Huntsville, Alabama. He was represented by counsel of his own choice and at arraignment he pleaded not guilty. After conviction he was found to be indigent and was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The facts are not in dispute. Appellant did not testify nor did he offer any evidence in his behalf. When the state rested, appellant moved to exclude the state's evidence on the ground that the state failed to make out a prima facie case. This motion was overruled and denied.

Sometime during the night of August 13, 1974, or the early morning hours of August 14, 1974, this restaurant was entered by breaking a window in the building. The broken window was discovered by a Huntsville Police Officer while on routine patrol. The officer called Mr. Woodrow Harbin, the owner of the restaurant who lived across the street. According to Mr. Harbin, he got the call at 3:30 A.M. and went immediately to the restaurant. A police car was there when he arrived. Harbin took an inventory of the missing property and testified:

'Well, several items; first of all, a music machine had been broken into and probably--we had to estimate--between $50 and $65 was taken. There was a twelve gauge shotgun. It was more of an antique than a gun you would usually use. It had a gold trigger and gold trigger guard. I guess it was worth $100 to $125 and there was a FM receiver missing, a radio, and I believe an electric guitar and another item or two, I don't remember off hand.'

Harbin valued the electric guitar at twenty-five or thirty dollars and the Lafayette receiver between $50 and $65.00. He further testified that he saw the missing property a couple of hours later at the Police Department. He identified the property as his and the officers surrendered the property to him. The officers showed him 3 or 4 twelve gauge shotgun shells and he identified them as his property and said he found one twelve gauge shotgun shell on the floor of his restaurant when he was inspecting the premises after the burglary.

Mr. Robert Dollar testified that he was an employee of the Ruby Nell Restaurant and worked there 14 or 15 years prior to the burglary; that he closed the restaurant between 9:30 and 10:00 P.M. on the night of August 13, 1974, and made sure that all the doors and windows were locked.

Officer Paul Bridges was the officer who discovered the broken window and called Mr. Harbin. He also was present when the owner made an inventory of the missing property and he found a shotgun shell on the floor behind the counter which he turned over to Detective Sharp and which was introduced in evidence. Bridges testified that the restaurant was in a state of disarray. He found the cigarette machine had been popped open and the cabinets were opened and the grills over the store were pulled down. He also found a gold colored sock. He called headquarters to report the burglary and Officers Nelson and Hines came as a back-up unit.

Officer Pat Dillaha testified that he was on duty the night of the burglary and saw a 1967 Chevrolet, black and white, traveling west on Oakwood Avenue and observed the car weaving from the right lane to the left lane and run up on the curb one time. The time was between 3:30 and 4:00 A.M. He called headquarters for assistance in stopping the car. He also gave a description of the car.

Officer Larry Nelson picked up the radio dispatch while he was patrolling around the area of Pulaski Pike and Oakwood and stopped the 1967 black and white Chevrolet within two blocks. He asked the driver for his identification and was told he had none. He asked his name and the driver said his name was Wayne Eubanks. Eubanks was drunk and he was placed under arrest, handcuffed and put in the patrol car. Appellant was a passenger in the car and he identified himself to the officer and said he was the owner of the car. He asked the officer if he could drive his car on home and the officer told him the car had to be impounded and he called for a wrecker. He also called for assistance to make an impoundment search and to inventory any valuables found in the car. Officer Nixon came to the scene to assist Nelson. Nelson took the car keys and opened the trunk and found a twelve gauge double-barrel shotgun, electric guitar, FM receiver radio and a 5-band radio.

Officer Nixon looked in the glove compartment and found a sock containing money. Appellant was made to get out of the car and one of the officers saw one of his pockets was bulging and he patted him down for weapons. He was made to put the contents of his pocket on the hood of the car. There was considerable money in dimes, quarters and half-dollars. Appellant was asked where he got the money and he said he won it in a poker game.

Both Eubanks and appellant were given their rights from a Miranda card issued to all police by the District Attorney's Office. Both said they understood their rights. They were arrested and carried to the station house. Both men refused to make a statement concerning the restaurant burglary or the possession of the property taken in the burglary. Appellant told the officer they had gotten all the information from him they were...