White v. State

• Citation: 42 Ala.App. 249,160 So.2d 496
• Decision Date: 28 January 1964
• Docket Number: 6 Div. 973
• Parties: J. C. Doyle WHITE v. STATE.
• Court: Alabama Court of Appeals

Page 496

160 So.2d 496

42 Ala.App. 249

J. C. Doyle WHITE v. STATE.

6 Div. 973.

Court of Appeals of Alabama.

Jan. 28, 1964.

H. C. Orme, Jr., Gadsden, for appellant.

Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.

CATES, Judge.

White was indicted for the second degree burglary of Holly Pond High School. On a verdict of guilty the trial judge sentenced him to eight years in the penitentiary.

The only evidence was that adduced by the State. It was all circumstantial except possibly the testimony of a Holly Pond policeman, Pasco Pete Patterson.

Patterson, about 7:30 on the morning of October 12, 1962, was afoot searching some woods about two miles northwest of the school. Some five or six hours earlier the school principal, through some sort of listening device running from the school to his house, overheard voices and loud noises.

Some two or three hundred yards from a 'regularly travelled road' Patterson found White and another, D. C. Green. Green 'had on green work trousers.'

A green and white two-tone hardtop 1955 Chevrolet two door sedan with Etowah County tags was found by the deputies early in the morning in a cemetery about a half mile north of the school. White was the registered owner. A State investigator testified he verified the number of the car's engine with that given on the license receipt.

The sheriff, answering a call from the principal, saw, as he drove up, two men running in the area on the south side of the schoolhouse heading south toward Holly Pond. This was about 2:20 A.M., October 12, 1962.

Tracks--footprints fresh on the morning dew--led from the Chevrolet to within thirty or fifty yards of the school on the north. On the south the tracks led out from the schoolhouse door for one hundred to one hundred fifty yards.

The sheriff's testimony on direct was in part:

'A There was a small driveway with grass in it and a few feet behind the door, then it ran into an area that had been plowed and a garden into where it was growed up in weeds, vines and briars that had been there for years, and there were honeysuckle vines knee deep to waist deep in there.

'Q From that area south of the school, did you continue your investigation?

'A Yes.

'Q Did you follow the tracks leading south from the school?

'A Into these vines and weeds.

'Q How far from the school was this point you followed these tracks approximately?

'A Maybe 100 or 150 yards in the weeds where they had been trampled down.

'Q Could you follow the tracks clearly?

'A Where the ground was soft in the area of the garden you could, when they got into the vines you could see where something had gone through.

'Q Did you continue your investigation of the tracks?

'A Yes.

'Q Where did you find them next?

'A Back north near the automobile coming out of the pasture off a bank into this cross road that goes east and west.

'Q These two sets of tracks?

'A Yes.

'Q Did you follow them from the area?

'A Yes.

'Q Which way did they go then?

'A They led across the little dirt road, the cross road, in a direction from the cemetery going east and west into a weed patch. You couldn't do too much with it, you would see a track once in a while in the cotton field and the tracks led into the north direction around the woods, they were going in and out very much, they would go in deep, what I call a deep, hilly place and the tracks would go and they stayed around the edge of the woods.

'Q In which general direction were they going?

'A In a northwesterly direction.

'Q In your judgment how far did you follow them in a northerly direction from the cemetery?

'A I would say two miles, or further.

'Q Do you know Mrs. Fannie Mae Lovell and where she lives out there?

'A Yes.

'Q Did you follow the tracks towards where her house is or not?

'A In the general direction, they were going towards her house.

'Q Do you have any judgment about how close to her house you followed them before losing them?

'A I would say one-quarter of a mile.'

Mrs. Lovell testified that she lived two and a half miles north of Holly Pond on the Holly Pond-Fairview Road. The morning of October 12 she got up around five o'clock. About six in the morning she saw two men walking south on the road. Both were bareheaded and one wore dark green trousers.

Mr. Hollis Tucker, the principal, as well as the sheriff described a broken window, office doors left open, a vault broken in with concrete blocks beaten to make a hole, the combination lock on the vault door off and debris of the concrete blocks and the cement mortar.

Mr. Tucker testified the walls, including those in the vault, were painted 'a greenish-blue or bluish green.' Typewriters, adding machines, desks and chairs were being kept in the school building. The Cullman County Commission on Education had 'general care and overall supervision of the High School.'

A toxicologist testified that clothes, notably a shoe (shown to have come from White), contained small fragments of concrete. On one fragment, he found 'small flakes of light green paint.' He also gave the opinion that (and demonstrated to the jury) the shoe made tracks identical with two found at the scene.

The investigator had poured plaster of paris into at least two of the footprints. The resulting casts were in evidence along with White's shoe.

Mr. Tucker, on leaving at 5:00 P.M. of the day before, had seen that all the building's windows and doors were locked.

I.

The indictment follows the Code form, T. 15, § 259, Form 32. It lays the charge in a single count:

'The Grand Jury of said County charge that before the finding of this Indictment J. C. Doyle White, alias Jaybird White, whose name is otherwise unknown to the Grand Jury, did, with intent to steal, break into and enter a shop, store, warehouse, or other building, to-wit: Holly Pond High School, of the Cullman County Commission of Education, which is specially constructed or made to keep goods, wares, merchandise or other valuable thing, to-wit: desks, typewriters, chairs, adding machines, in which goods, wares, merchandise or other valuable thing, to-wit: desks, typewriters, chairs, adding machines, were kept for use, sale or deposit, against the peace and dignity of the State of Alabama.'

The only grounds of demurrer which need discussion are:

'9. That said indictment fails to allege the legal description of 'Cullman County Commission On Education.'

'10. That said indictment fails to allege whether or not 'Cullman County Commission On Education' is an individual, partnership, corporation, agent, agency or other legal title description.'

Appellant's brief states in part:

'For all that appears in the indictment, the accused may have been the actual, if not the legal, custodian of the building described as the 'Holly Pond High School', or the room or office broken into and entered may have been in the actual custody of the accused.

'To illustrate, the evidence in the record shows that Mr. Tucker is principal of the school occupying the office that was broken into and entered in Holly Pond High School. Suppose he had broken and entered his own office. There is not evidence in this record that anything of value or anything at all was taken from the office or building. Could Mr. Tucker be guilty of burglary under such circumstances?

'It cannot be doubted that each room or office of the Holly Pond High School may be a 'building' within the meaning of the statute, and the subject of burglary, but the ownership of the property in such a prosecution should be laid in the actual occupant. Adams vs. State [13 Ala.App. 330, 69 So. 357].

'* * * The undisputed proof and only proof offered by the State as to ownership is the testimony of Mr. Hollis Tucker, the principal of Holly Pond High School. In reply to the question 'Who has the general care and overall supervision of the High School out there?' He stated 'The Cullman County Commission on Education, the Board of Trustees and the principal.' * * *'

Burglary is, in part, against possession. Aiola v. State, 39 Ala.App. 215, 96 So.2d 816, headnote 2.

Charging ownership in a burglary count puts the onus on the State of showing 'ownership,' i. e., occupancy--rather than title. The person in possession (either himself or by servant) is the occupant for this purpose. Key v. Dozier, 252 Ala. 631, 42 So.2d 254, adopting Fuller v. State, 28 Ala.App. 28, 177 So. 353, which, in turn, relies on Adams v. State, 13 Ala.App. 330, 69 So. 357, where Judge (later Mr. Justice) Brown wrote:

'The rule which requires the negation of the defendant's right to break and enter necessitates that the ownership of the property be definitely laid in the indictment. * * * The reason of the rule is to show that the accused is not the rightful occupant, and therefore had no right to break and enter, and to so identify the offense on the record as to protect the accused from a second prosecution for the same offense. State v. Trapp, 17 S.C. 467, 470, 43 Am.Rep. 614.'

A number of Alabama cases are collected in 20 A.L.R. (Anno.) 510, with the following statement of the rule of the majority of American courts:

'By the great weight of authority an indictment or information for burglary must allege directly the ownership of the building entered.

'Alabama.--Ward v. State (1874) 50 Ala. 120; Beall v. State (1875) 53 Ala. 460, 2 Am.Crim.Rep. 463; Graves v. State (1879) 63 Ala. 134; Adams v. State (1915) 13 Ala.App. 330, 69 So. 357. See also Anderson v. State (1872) 48 Ala. 665, 17 Am.Rep. 36; Webb v. State (1875) 52 Ala. 422; Johnson v. State (1883) 73 Ala. 486; Arp v. State (1893) 97 Ala. 5, 19 L.R.A. 357, 38 Am.St.Rep. 137, 12 So. 301, 9 Am.Crim.Rep. 517.'

And supplemented in 169 A.L.R. (Anno.) 887:

'Alabama.--Wilson v. State (1945) 247 Ala. 84, 22 So.2d 601 (denying writ of certiorari in (1945) Ala.App. , 22 So.2d 600); Jetton v. State (1939) 29 Ala.App. 134, 195 So. 283 (writ of certiorari denied in (1940) 239 Ala. 306, 195 So. 284).'

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