Whitson v. State, 6 Div. 54

• Decision Date: 04 September 1979
• Docket Number: 6 Div. 54
• Citation: 377 So.2d 1108
• Parties: Larry WHITSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1108

377 So.2d 1108

Larry WHITSON v. STATE.

6 Div. 54.

Court of Criminal Appeals of Alabama.

Sept. 4, 1979.

Rehearing Denied Oct. 2, 1979.

William J. Wynn, III, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Larry Whitson was charged by indictment with the first degree burglary of the inhabited dwelling house of Johnny M. Harris. The jury found the appellant guilty of first degree burglary as charged in the indictment. The trial court then sentenced the appellant to twenty-five years imprisonment in the penitentiary. The appellant filed a motion for new trial challenging the weight and sufficiency of the evidence and also the admission into evidence of certain evidence with reference to fingerprint identification. This motion was overruled.

Johnny M. Harris testified that he and his wife resided on Taylor Street at Route 8, Box 8, in Dolomite, in Jefferson County on April 14-15, 1978. Mr. Harris stated that he was a radio and TV repairman and had a room off the rear of the home in which he brought radios and television for work. He gave a description of his home and stated that he locked it on the night of Friday, April 14, 1978, and that he and his wife retired shortly after 9:00 p. m. He stated that he was awakened shortly after 2:00 in the morning by his wife screaming, and stated that someone was in the house. Mr. Harris got up and looked down the hall and saw a man running toward the rear of the house. He stated that he followed the man and noticed that he was tall and slender but that he only saw him from the rear.

Mr. Harris stated that he and his wife went next door to his brother's home and telephoned the police and then peered out the door toward his home and noticed two men peering around his home from the back yard. Mr. Harris stated that he called to them and then walked over and stated there was no use in their running because he had already telephoned for the officers and for them to stay right there. One man looked at him and then began to run down the driveway toward Taylor Street and disappeared. The other man, who he positively identified in open court as the appellant, remained in the yard until the officers arrived. Larry Whitson was positively identified in court as the man observed in Mr. Harris' back yard between 2:00 and 2:30 a. m.

Mr. Harris stated that he found a portable Magnavox and also a portable Philco television sitting on the grass just outside a window which had been broken, and that there was broken glass on the ground and also inside the house. Mr. Harris stated he had between 20 and 25 television sets in his repair room at the time of the burglary. Mr. Harris indicated on cross-examination that the party he saw running down the hall was taller than himself and slender. He stated the other man was short and this was the man who ran down the drive and disappeared. He stated that when the officers arrived, he assisted them in loading the two television sets into the trunk of the officer's car so they could be checked for fingerprints.

Mr. Harris stated that his brother did automobile repair work and sometimes would leave an automobile in his back yard. Their homes were next door to each other.

Mrs. Thelma L. Harris stated that she was the wife of Johnny Harris and resided with him on April 14-15, 1978, at Route 8, Box 8, Dolomite, in Jefferson County, Alabama. Mrs. Harris indicated that she and her husband retired shortly after 9:00 and she got up at about 2:00 in the morning to go to the bathroom and heard a noise which startled her and then saw a man running down the hall. Mrs. Harris stated she screamed and called her husband and wakened him and that he too saw a man disappear into the back room of the house and that this man was tall and slender. Mrs Harris stated that he was wearing light blue bell bottom pants.

Mrs. Harris indicated that she and her husband went to her brother-in-law's home and there telephoned the officers and then she watched from the door of her brother-in-law's home when her husband called to two men they saw standing in their back yard. One of these men was short and the other tall and slender. Mrs. Harris positively identified in court the appellant, Larry Whitson, as being one of the two men who was standing in their back yard between 2:00 and 2:30 a. m. on the early morning of April 15, 1978.

On cross-examination Mrs. Harris indicated that she did not see the man's face as he ran down the hall and into the back of their home. She stated that the room in the rear was where her husband kept radio and television sets that he worked on and that her husband was a TV and radio repairman.

Mrs. Harris indicated that one of the two men she noticed in the back yard was short and stocky while the other was tall and slender. She stated that there was a light on in both the front and rear of the home and that it was a bright moonlit night and she saw the man clearly standing in the back yard and that this man was the appellant.

Officer John W. Butler stated that on the night of April 14-15, 1978, he was on patrol with the Jefferson County Sheriff's Department with fellow officer, Graig Carr. The two men responded to a call at Route 8,...