Whistenant v. State

• Decision Date: 20 February 1973
• Docket Number: 7 Div. 166
• Citation: 278 So.2d 183,50 Ala.App. 182
• Parties: Hugh Gray WHISTENANT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 183

278 So.2d 183

50 Ala.App. 182

Hugh Gray WHISTENANT v. STATE.

7 Div. 166.

Court of Criminal Appeals of Alabama.

Feb. 20, 1973.

Rehearing Denied March 20, 1973.

Donald W. Stewart, Anniston, for appellant.

William J. Baxley, Atty. Gen., and David Lee Weathers, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted by a jury in the Circuit Court of Cleburne County for the offense of buying, receiving, concealing, or aid in concealing stolen property.

The indictment is as follows:

'INDICTMENT

'THE STATE OF ALABAMA

CIRCUIT COURT OF CLEBURNE COUNTY

'CLEBURNE COUNTY

FALL TERM, DECEMBER 2nd, 1971

'The Grand Jury of said County charge that, before the finding of this Indictment, Hugh Gray Whistenant, whose true name is to the Grand Jury otherwise unknown, did Buy, Receive, Conceal, or Aid in Concealing, One (1) 1970 Pontiac Catalina automobile, I/D 252370P101096. A better description of which being unknown to the Grand Jury, of the value, of to-wit: $3,000.00, the personal property of Otis C. Duvall knowing that the same had been stolen, or having reasonable grounds for believing same had been stolen, and not having the intent to restore it to the owner, . . . against the peace and dignity of the State of Alabama.

'/s/ Otis MacMahon

District Attorney, Seventh Judicial Circuit'

Appellant demurred to the indictment and the same was overruled by the trial court.

The facts necessary to an understanding of this case appear below.

Otis C. Duvall, Jr., testified that on October 19, 1971, he was living at a motel in Birmingham, Alabama, where he was employed at Eskew & Son in Homewood. His permanent residence was in Phenix City, Alabama. On this date he was the owner of a 1970 Pontiac Catalina 400, dark green body with black vinyl top. It was a two-door hardtop. It was a used car and was purchased from an automobile dealer in Columbus, Georgia, about three weeks before it was stolen. The purchase price was $2,995.00. He executed an Installment Sale Contract, which showed a cash down payment of $385.25 and traded in a 1968 Ford Custom automobile for which he was allowed $845.00. There is a discrepancy in the amount testified to by Duvall as to the purchase price and the amount shown on the sales contract. This discrepancy, however, is not material to the disposition of this case.

On Saturday, October 16, 1971, Duvall was issued a license tag and a tag receipt by the Probate Judge of Russell County for this vehicle being a 1972 tag, number 57--5198, and this tag was mounted on this Pontiac on that date, and was still mounted on the car when it was stolen on October 19, 1971.

On October 19, 1971, Duvall went to his place of employment at 7 A.M., parking his car in a church parking lot nearby. He locked the car and carried the key with him. He got off work at 3:30 P.M. and went to the parking lot and found the car was gone. His superintendent rode him up and down the streets of Homewood in search of his automobile. Being unable to locate it, Duvall reported the theft to the Homewood Police Department and signed a complaint. He never saw this car again.

The scene shifts from Jefferson County to Cleburne County. Lieutenant E. E. Hardegree testified that he was an investigator with the Alabama Department of Public Safety and had been so employed for approximately twenty years; that his duties dealt primarily with intestigating automobile thefts and that the counties of Calhoun, Cleburne, Clay, Randolph and St. Clair were embraced in his assigned territory; that on October 19, 1971, he took part in an automobile theft investigation in Cleburne County. He testified that he was familiar with the highways, roads, bridges, and streets of Cleburne and Calhoun Counties, as well as the cities, towns and communities in these two counties. Also he was familiar with the location of the rivers, creeks, and different bodies of waters situated in these counties. A map of Cleburne and Calhoun Counties was used in connection with his testimony and other witnesses. The map was used as a reference--not an exhibit, and we do not have the benefit of it. We glean from the testimony that the map was dotted with arrows pointing in all directions--North, East, South and West--to make clear to the jury the location of highways, roads, bridges, cities, towns, communities, rivers, creeks, and other points material to the state's case. The map had blue lines to separate counties and a green line to denote wooded areas where certain officers stationed themselves for vantage points during surveillances in connection with their investigation. Had the map been introduced in evidence, it would have been a great help to us in following the testimony. Nevertheless, we will undertake to summarize the state's case.

Hardegree further testified that on the morning of October 19, 1971, he in company with another State Investigator, Sergeant Roy McDowell, and Larry Sylvester, an F.B.I. Agent, went in the vicinity of a farm in the Bells Mill Area of Cleburne County about nine and one half miles southeasterly from Heflin. To get to this farm, one would have to travel on State Highway 46 and turn on a county dirt road and cross the Tallapoosa River over a metal bridge. They went to this place in Sylvester's automobile. Hardegree got out of the car a short distance from the bridge and secluded himself in some bushes and trees about fifteen feet from the road. He was equipped with a two-way radio (walkie-talkie), binoculars and a notebook. He made notes on coming and going vehicles and the drivers of each as well as the physical outlay of the premises showing houses, buildings and a barn. He identified photographs of the buildings and roadway approaches to the farm. These were introduced in evidence without objection.

According to this witness, the first vehicle that came to the farm was a blue pickup truck. This truck was driven by one Jackie Tant and passed the point where he was stationed at 10:50 A.M. He had known Jackie Tant in the past. Tant approached the farm from the West, crossed the bridge, continued on the dirt road to the gate, stopped and opened the gate, drove through, stopped and closed the gate, and continued down the lane toward the barn. Immediately behind the blue pickup truck was a white Oldsmobile driven by appellant. Hardegree had known appellant in the past and knew he lived in Anniston, Alabama. He pointed to him in the courtroom and identified him as the driver of the Oldsmobile. No other vehicles approached the farm until 1:10 P.M. at which time a 1970 two-tone green Pontiac Catalina came from the same direction as the pickup truck and Oldsmobile. The Pontiac bore a 1972 Alabama license plate, green in color with black numerals, the number being 57--5198, and was driven by one Billy McGullion. This witness had also known McGullion in the past and knew that he lived in Anniston. The driver of the Pontiac followed the same route that had been taken by appellant and Jackie Tant--'He continued on up the road here (indicating) to the gate, stopped, opened the gate, went through the gate, stopped the car, got out and closed the gate, and drove on down this road (indicating) in the direction of the barn, out of sight around the curve.' There were now three vehicles at the barn and three men on the premises including appellant.

The sequence of events transpiring thereafter show that at 1:20 P.M. on the same day the white Oldsmobile driven to the premises by appellant around 10:50 that morning was driven from the farm by Billy McGullion who drove the Pontiac to the farm at 1:10 P.M. The Oldsmobile and McGullion were not seen again on that day. At 2:50 P.M. the blue pickup truck left the farm, traversing the route, being driven by Jackie Tant, and made an excursion around the country side, and then returned to the farm.

This witness testified that around 3:00 P.M. he heard some beating, banging and hammering coming from the direction of the barn; it sounded like beating on metal and had a metallic sound like metal being shifted and moved around on metal; that this noise continued for an hour or more and until just before he saw the pickup truck again.

At 5:50 P.M. the blue pickup, driven by Jackie Tant, left the farm loaded with the rear section of a 1970 Pontiac of the same color and description as the one that was driven to the farm by Billy McGullion. Upon being asked what comprises the rear section of the Pontiac that he was describing, he responded by saying:

'We call the rear clip, which consists of both rear fenders, quarter panels, the top of the automobile and everything up to the dash, minus the seats.'

The rear clip would also include the rear glass, but not the doors, the wheels or the frame underneath.

Hardegree stated that the license plate had been removed or was not still mounted on the rear portion of this 1970 Pontiac, green in color with a dark vinyl top. He remained at his post until approximately 7:30 P.M. and then left; that appellant had not left the premises from the time he carried in the white Oldsmobile around 10:50 A.M. on October 19, 1971, up to and including the time he gave up the surveillance that night.

Sergeant McDowell testified that he worked for the State Department of Public Safety and had been so employed for twenty years, the last eleven as an Investigator; that he was assigned to the Auto Theft Unit of the Department; that on October 19, 1971, he accompanied FBI Agent Sylvester and Lieutenant Hardegree on an auto theft investigation in Cleburne County in the area more fully described in the testimony of Hardegree above detailed. He stationed himself in a wooded area directly behind the barn and had a clear view of the doors of the barn as there was pasture or open land between the wooded area and the barn. The point where he was stationed was roughly 75 yards from the barn. There were two doors--one large and one small--on the barn and they remained open until...