Stone v. State

• Decision Date: 29 July 1975
• Docket Number: 1 Div. 562
• Parties: Donald STONE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 359

318 So.2d 359

55 Ala.App. 663

Donald STONE v. STATE.

1 Div. 562.

Court of Criminal Appeals of Alabama.

July 29, 1975.

Kenneth Cooper, Bay Minette, for appellant.

William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant stands convicted of the crime of false pretense for which he received a ten-year sentence in the penitentiary. He was represented by retained counsel at all stages of the trial below and he is represented by trial counsel on this appeal. At arraignment he pleaded not guilty.

Omitting the formal parts, the indictment reads:

'The Grand Jury of said County charge that before finding this indictment on to-wit: May 31, 1974, Donald Stone did falsely pretend to Frances Melton and Jane Spradley, with intent to defraud, that he had certain stones which were true diamonds, of the value of $12,600.00 and by means of such false pretense and by delivery of said stones to Frances Melton and Jane Spradley, did obtain from the said Frances Melton and Jane Spradley $12,600.00 in lawful currency of the United States of America, against the peace and dignity of the State of Alabama.'

Prior to trial counsel for appellant filed a petition alleging that appellant showed symptoms of mental incompetency and insanity and sought an inquisition into his mental status both as to the time of the commission of the offense and presently.

The court directed the Sheriff of Baldwin County to deliver appellant to the Alabama State Hospital, Searcy Hospital, at Mt. Vernon, to make an examination, observation and determination as to his mental condition. This order was issued on August 12, 1974. On September 17, 1974, the Superintendent of the hospital, the Chief of the Medical Staff, and a Staff Psychiatrist filed a report with the court stating, in part, 'After full study and this period of observation, it is the opinion of each of us separately, and our opinion jointly and collectively, that the said Donald Stone is presently sane and competent. During all the time of hospitalization there has been no evidence of psychosis. It is our opinion that this patient knows the difference between right and wrong and is able to adhere to the right. His diagnosis has been offered as Antisocial Personality. It is also our opinion that he was sane and competent at the time of his admission to Searcy Hospital. It is our opinion that at the time of the alleged crime he was sane and competent, knew what he was doing and could adhere to the right.'

The evidence in this case is in hopeless conflict. The evidence for the state tended to show that a gigantic fraud was perpetrated upon the two women named in the indictment. The evidence on behalf of appellant tended to show that he was not involved in any wrongdoing. Only a jury could unscramble this conflicting testimony and arrive at the truth.

Mrs. Jane Spradle testified that she lived in Pensacola, Florida, and ran a flea market on Pensacola Boulevard. That she knew a Mrs. Ilene Hendrich, the mother of appellant, though she did not know Mrs. Hendrich had a son by the name of Donald Stone. She said she rented a table to Mrs. Hendrich on some weekends at the flea market and knew that she sold jewelry. She stated that sometimes Mrs. Hendrich sold diamonds. She further testified that Mrs. Hendrich initiated a conversation with her concerning the purchase of some diamonds. On May 30, 1974, Mrs. Hendrich told her she had some diamonds that she wanted to sell for $12,600.00.

Mrs. Spradle was a good friend of Mrs. Frances Melton and she told Mrs. Melton about the diamonds and asked her if she would be interested in going in with her and purchase these diamonds. Mrs. Melton said she would have to call her husband to see about borrowing half of the purchase price, viz., $6,300.00. She contacted her husband and he told her to go to the bank and borrow the money.

Mrs. Melton testified that she did not know Mrs. Hendrich but she had bought a diamond from a woman who had bought the diamond from Mrs. Hendrich. That it was a good diamond and she paid $1,800.00 for it.

Mrs. Melton further testified that she had several telephone conversations with Mrs. Hendrich prior to May 31, 1974, and was familiar with her voice. She stated that she learned about Mrs. Hendrich through another friend, a Mrs. Boutwell, who told her Mrs. Hendrich brought some alleged diamonds to her house prior to May 31, 1974, but when Mrs. Hendrich learned that a jeweler was coming over to appraise the diamonds, she gathered them up and ran before the jeweler arrived. Mrs. Melton did not think too much about this incident as she had purchased a good diamond from a friend who bought it from Mrs. Hendrich.

Mrs. Melton further testified that she had several telephone conversations with Mrs. Hendrich on May 31, 1974, after she and Mrs. Spradle had borrowed the $12,600.00. These conversations related to where they would meet to complete the sale and purchase of the diamonds. Mrs. Melton asked her to come over to her house or to the home of Mrs. Spradle and Mrs. Hendrich replied that she wanted them to meet her in the churchyard at the Catholic Church at Lillian, Baldwin County, Alabama. Mrs. Hendrich told her she would be in a black and white Benz and Mrs. Melton thought a Benz was a Mercedes and would be parked in the churchyard. Mrs. Melton did not know that Mrs. Hendrich had a son named Donald Stone.

Mrs. Melton picked up Mrs. Spradle on May 31, 1974, and drove to Lillian, Alabama, as directed by Mrs. Hendrich. When they arrived they did not see a Benz or Mercedes but were stopped by a man wearing dark glasses who had parked a white van truck with black stripes with the word 'Boogie' on the back of the van. This man got in the back seat of Mrs. Melton's car and said he was Don Stone and was running an errand for his mom. He explained that his father was dead and that his mother had remarried a man by the name of Hendrich.

Stone had a black cloth and he opened it and displayed nineteen white small packages. Mrs. Melton got in the back seat and Stone opened the packages for Mrs. Melton to see. He would not let her pass the stones to Mrs. Spradle on the front seat. Mrs. Melton thought they were diamonds and gave Stone her $6,300.00 and he counted it. He appeared very nervous and when Mrs. Spradle gave him her $6,300.00 he did not count it but told her he was in a hurry and if the amount was not correct, he would let her know later. He told them he was going to carry the money to the airport and he got out of the car and got in the van truck and hurriedly left the churchyard.

Mrs. Melton and Mrs. Spradle immediately left and returned to Pensacola and went directly to see Mr. John Beasley who owned and operated Beasley & Son Custom Jewelers and Repair Shop. Mrs. Melton and Mrs. Spradle had been customers of Mr. Beasley for a number of years. Mrs. Melton showed him one of the stones and he immediately told both women the stone was glass. He examined two or three more and they were glass also.

Mr. Beasley testified for the state and according to his testimony the stones were not diamonds and at most were worth only $35.00 a carat. He described the stones as stronium titanate or 'Fabulite' and not diamonds. On the witness stand he opened one packet and stated that it was one Fabulite imitation cut stone resembling a diamond worth about $80.00 and a smaller one which he said was worth about $50.00. There were twenty of these imitation stones in all and he stated they certainly were not worth anything like $12,600.00.

As soon as Mrs. Melton got home, she called the Pensacola Police Department and told them what had occurred. They gave her a number to call in Foley and the number was the Police Department. The officer told Mrs. Melton to get Mrs. Spradle and meet him at the Catholic churchyard where the transaction occurred. They met the officer, Bobby Stewart, as directed and he got them in the patrol car and carried them to the home of Mrs. Hendrich. Mrs. Melton told the officer that she had never met Mrs. Hendrich but she would recognize her voice. The officer brought Mrs. Hendrich to the patrol car and had a conversation with her at the door of the patrol car so that Mrs. Melton could hear her voice. The officer told her that if she would refund the money, they would not take her in. She said she did not know anything about any money as she had not sold Mrs. Melton or Mrs. Spradle any diamonds. Mrs. Melton told the officer she recognized Mrs. Hendrich's voice as the woman who told her over the telephone that she wanted $12,600.00 for the diamonds and to meet her in Lillian, Alabama, at the Catholic churchyard to make the sale and purchase. Mrs. Spradle knew Mrs. Hendrich as she had rented her a table at the flea market. While they were parked in the patrol car, they saw the white and black striped van truck with the word 'Boogie' on the back of the van. The officer asked Mrs. Hendrich where Stone was and she said he left and she did not know where he had gone.

Mr. Stewart kept the glass stones in his possession until he turned them over to the Chief of Policy who locked them in a safe where they remained until they were brought to appellant's trial. They were identified as being in the same condition as they were in when they were surrendered to the officer by Mrs. Melton and Mrs. Spradle who testified they were in the same condition as when they were given to them by appellant on the afternoon of May 31, 1974....