Womack v. State

• Decision Date: 23 October 1984
• Docket Number: 1 Div. 557
• Citation: 462 So.2d 1020
• Parties: James WOMACK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1020

462 So.2d 1020

James WOMACK v.STATE.

1 Div. 557.

Court of Criminal Appeals of Alabama.

Oct. 23, 1984.

Rehearing Denied Jan. 8, 1985.

John Bertolotti, Jr., Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

James Womack was convicted of burglary in the third degree, § 13A-7-7,Ala.Code 1975.He was sentenced as a habitual offender to 12 years' imprisonment.

The evidence tends to show that on June 3, 1982, at approximately 1:45 a.m. Officer Bankston of the Mobile Police Department was summoned to the UMS Preparatory School on a burglar alarm call.Upon arrival he apprehended the appellant, who was crawling out of a window at the school from which an air conditioner had been removed.The appellant, however, did not have the air conditioner in his possession nor was it ever recovered.

The appellant contends that the trial court erred when it failed to give his requested charge on criminal trespass in the second degree as a lesser included offense of burglary in the third degree.

"A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders."Ala.Code(1975), § 13A-7-7.Therefore, the elements of these two crimes are essentially the same, except that burglary in the third degree requires proof of an intent to commit a crime once the trespass is made.

It is well established under Alabama law that an individual accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment when there is a reasonable theory from the evidence to support his position.Fulghum v. State, 291 Ala. 71, 277 So.2d 886(1973);Chavers v. State, 361 So.2d 1106(Ala.1978);Staggs v. State, 51 Ala.App. 203, 283 So.2d 652(Ala.Crim.App.1973).

A charge on lesser included offenses should be denied, however, unless the charge (1) defines the offense, (2) is based on a consideration of all the evidence, (3) sets out the degree of proof necessary to establish the offense, and (4) would not tend to mislead the jury.Lami v. State, 43 Ala.App. 108, 180 So.2d 279(1965);Tate v. State, 462 So.2d 748(Ala.Crim.App.1984);Chavers, supra.

The evidence tends to show that the appellant at the least committed a criminal trespass, since he was apprehended while crawling out of a window at the school....