Whitley v. State
| Decision Date | 17 March 1953 |
| Docket Number | 8 Div. 109 |
| Citation | 37 Ala.App. 107,64 So.2d 135 |
| Parties | WHITLEY v. STATE. |
| Court | Alabama Court of Appeals |
Gibson, Hewitt & Gibson, Birmingham, for appellant.
Si Garrett, Atty. Gen., and Thos. M. Galloway, Asst. Atty. Gen., for the State.
In the circuit court the defendant, Curtis Whitley, was indicted and convicted on a charge of burglary in the second degree.
The burglarized building or structure was located in Florence, Alabama.
There is no dispute as to the facts of the burglary. The question of prime concern is whether or not the accused participated in the commission of the crime.
In this aspect the State anchored the prosecution solely on circumstantial evidence.
It is urged that the defendant was due the general affirmative charge or the verdict was contrary to the evidence and the motion for a new trial should have been granted.
There were several exhibits introduced in evidence. Among these was a brokenpoint screwdriver. This tool was a very potent factor in the development of the circumstantial events. None of the exhibits was forwarded to this court.
We must, therefore, enforce the rule which provides that when all the evidence is not before us we cannot review the actions of the court below in refusing the general affirmative charge or denying the motion for a new trial. Mooneyham v. State, 35 Ala.App. 576, 50 So.2d 792; York v. State, 34 Ala.App. 188, 39 So.2d 694; Mobile City Lines v. Alexander, 249 Ala. 107, 30 So.2d 4.
Over timely objections the court permitted the State to prove some circumstances relating to a burglary that was committed on the same night in the city of Tuscumbia. This evidence tended strongly to connect the appellant with the commission of this offense.
The principle here controlling is well expressed in 20 Am.Jur., Evidence, p. 292:
See also, 22 C.J.S., Criminal Law, § 691(f), page 1118.
The appellate courts of this state have had many occasions to review the question of the propriety of proof of other similar offenses.
Our diligent search has led us to only one case in which the crime of burglary was involved. This case, Mason and Franklin v. State, 42 Ala. 532, is strikingly analogous in factual foundation to the cause at bar. The conclusion reached by the Supreme Court is summarized in the first headnote:
'When a defendant is on trial for burglary, evidence of other criminal acts than those charged in the indictment may be received, where it is necessary to prove a guilty knowledge, to establish identity, to make out the res gestae, or to make out a chain of circumstantial evidence of guilt, in respect to the act charged.'
This authority has been cited and its doctrine adopted by the appellate courts of this state in many subsequent opinions.
In the case of Gibson v. State, 14 Ala.App. 111, 72 So. 210, Judge Pelham writing for this court pointed out that, if the evidence relied upon for a conviction is circumstantial and not positive and direct, the rule in the Mason and Franklin case, supra, should be followed.
Other authorities worthy of note are: Sellers v. State, 98 Ala. 72, 13 So. 530; Jackson v. State, 18 Ala.App. 259, 89 So. 892; Gardner v. State, 17 Ala.App. 589, 87 So. 885; Johnson v. State, 242 Ala. 278, 5 So.2d 632; Jackson v. State, 229 Ala. 48, 155 So. 581.
Annotations of the views of appellate courts in other jurisdictions may be found in 3 A.L.R. 1545-1547 and 22 A.L.R. 1018.
See also, Wolff v. People, 123 Colo. 487, 230 P.2d 581; Commonwealth v. Segers, 167 Pa.Super. 642, 76 A.2d 483; People v. Mead, 50 Mich. 228, 15 N.W. 95.
The appellant and a companion were arrested on the night of the burglaries. The arrest was made in Tuscumbia near the burglarized building in this city. At the time the companion was carrying a paper bag containing some tools, among them was a broken-point screwdriver. The claim was made to the officers that the contents of the bag were to be used on a fishing trip.
The description of the breaking of the building in Tuscumbia indicated that a broken-point screwdriver was used.
Proof of the circumstances incident to this burglary tended to contradict the appellant as to the claimed use to be made of the tools in the sack.
We think that the evidence of instant concern was admissible also on this legal theory. This was the effect of the holding of the Illinois court in Williams v. People, 196 Ill. 173, 63 N.E. 681.
It appears that a scar or rub of the green paint finish near the point of entrance to the Tuscumbia building was observed by the officers. When the appellant was arrested, green paint was seen on one of his shoes. A witness was permitted to state that the paint marks on the shoe had the appearance of the same color or shade of green as was observed on the building. This was a statement of an impression of a collective fact. 6 Alabama Digest, Criminal Law, k451; 9 Alabama Digest, Evidence, k473.
A witness was permitted to describe certain marking made by tool prying at the place of entrance to the building. The objections took the position that this related to a commission of a crime for which the appellant was not being tried. As we have illustrated herein above, there is no merit in this insistence.
Forthwith after the appellant and his companion were arrested, one of the officers returned to a place on a street in Tuscumbia where he had formerly observed a Buick automobile carrying a Jefferson County tag. The officer followed the car at a high rate of speed to Sheffield. There the driver of the Buick jumped out and escaped. Various articles were found in the abandoned automobile, among them some burglary tools, a slide, and a carriage suitable for the purpose of conveying...
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...of whether the crime falls into one of these exceptions, admissibility is within the discretion of the trial court. Whitley v. State, 37 Ala.App. 107, 64 So.2d 135 (1953); McElroy's 69.02(1). In examining the issue of whether the evidence of the Seymour Jewelry Company robbery was admissibl......
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...of whether the crime falls into one of these exceptions, admissibility is within the discretion of the trial court. Whitley v. State, 37 Ala.App. 107, 64 So.2d 135 (1953). Nicks v. State, 521 So.2d 1018, 1028 (Ala.Cr.App.1987) aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241, 108 S......
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