Wilson v. State, 4 Div. 650
Decision Date | 29 August 1978 |
Docket Number | 4 Div. 650 |
Citation | 361 So.2d 1167 |
Parties | Timmy Gerald WILSON, alias v. STATE. |
Court | Alabama Court of Criminal Appeals |
W. Bartlett Taylor, Andalusia, for appellant.
William J. Baxley, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen., for the State.
Appellant was put to trial upon a two-count indictment charging, (1) grand larceny, and (2) buying, receiving, concealing or aiding in concealing, etc., stolen property. Prior to arraignment appellant was found to be indigent and the Court appointed counsel to represent him. At arraignment he pleaded not guilty. The jury returned a verdict finding the appellant guilty under count two of the indictment. The Court sentenced him to ten years imprisonment in the penitentiary. After sentence was imposed appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.
The evidence presented by the State tended to show that the Barbecue Ranch located on Highway 331 south of Opp in Covington County was broken into on the night of November 26, 1977, and one RCA color television set of the value of $325.00 was stolen. The owner of the premises, Mr. Charlie Stewart, testified that when he closed his business on the night of November 26, 1977, the television set was in the building. The next morning he found the glass in the front door was broken and the door open. He checked and found the television set was missing, along with five cartons of cigarettes and a metal box containing his business records. He stated that he later identified the television set at the Opp Police Department and recovered it. He had not seen his metal box or his business records since the break-in, nor did he ever recover the five cartons of cigarettes.
Mr. Johnny Joe Wesley testified that he did not know appellant personally but knew him by sight. He identified him in the courtroom. He further testified that in late 1977 he purchased an RCA color television set from one Bobby Edgar. He first saw the set on a bookcase in Edgar's home. He carried the set to a man by the name of Q. P. Taylor and sold it to him and had not seen it since. He stated that an officer from the Opp Police Department along with a Covington County Deputy Sheriff contacted him with reference to this television set.
Opp Police Officer Bill Norris testified on voir dire out of the presence and hearing of the jury. According to Norris he investigated the burglary and larceny at the Barbecue Ranch. In the course of his investigation he interviewed appellant at his mother's house on December 4, 1977. Before asking him any questions he read him his constitutional rights from a Miranda card and appellant responded by saying he understood his rights and signed a waiver of rights form. Appellant then gave an oral statement to the officer and he was carried to the station house. The next morning the officer got appellant from the jail cell and again read him the Miranda rights and warnings. Appellant told the officer that he understood his rights and was ready to make a statement.
Officer Norris further testified that no one in his presence or hearing threatened appellant, nor was he offered any reward, promise or other inducements to get him to make a statement. The officer wrote appellant's statement consisting of two pages and he signed his name to each page.
On cross-examination his counsel asked him why he made the statement and he replied, "I did not have anything to hide."
Back before the jury the State laid the pre-Miranda predicate and appellant's counsel said he had no objections to either the waiver of rights form or the statement signed by appellant. Thereupon the Court permitted appellant's signed statement to be read to the jury. The statement is as follows:
At the conclusion of the State's case appellant moved for a directed verdict on the ground the State had failed to prove every aspect and essential element of the crime charged against him. This motion was overruled.
Charles Smith testified in behalf of the defendant. He stated that he first saw the defendant at Winston's Grocery around 4:30 p. m. on November 26, 1977, and they remained there about an hour and thirty minutes; that his brother Roy Smith was with him at the time. The trio left and went to King's Den in Opp and stayed there until about 10:00 p. m. and left and he did not see the appellant any more that night.
On cross-examination he testified they all started drinking beer at the Grocery and they continued to drink beer at the King's Den. They had been drinking for more than four hours but appellant did not get drunk. He stated they did not go to the Barbecue Ranch that night and there was no discussion about a television set.
Roy Smith testified substantially to the same facts as his brother except that when they left the King's Den appella...
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