Opinion
8 Div. 51.
January 26, 1971. Rehearing Denied March 2, 1971.
Appeal from the Circuit Court of Lawrence County, Billy C. Burney, J.
William H. Rogers, Moulton, for appellant.
To constitute burglary it is essential for the State to prove a breaking into and entering of the automobile in question. Martin v. State, 44 Ala.App, 395, 210 So.2d 704. Where the State fails to connect defendant with burglary and failed to show that goods allegedly stolen were in the defendant's possession, it is reversible error for the Court to refuse defendant's motion to exclude the evidence. Dawson v. State, 43 Ala. App. 254, 188 So.2d 283; Bledsole v. State, 35 Ala. App. 567, 50 So.2d 457.
MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
In determining whether trial court erred in overruling defendant's motion to exclude the evidence and in refusing the general affirmative charge, Court of Appeals must take evidence in light most favorable to prosecution. Womack v. State, 34 Ala. App. 487, 41 So.2d 429; Maxwell v. State, 34 Ala. App. 653, 43 So.2d 323; McGee v. State, 36 Ala. App. 276, 55 So.2d 223.
The appellant appeals from a conviction in the Circuit Court of Lawrence County, Alabama, for the offense of burglary of an automobile and a sentence to the penitentiary for a term of three years.
The evidence for the state tends to show that around 9:00 A.M. on July 9, 1969, Mrs. Ethel Bryant had car trouble and was forced to leave her 1954 Mercury parked in front of Mr. Cleo Clark's home on Clark Road in Lawrence County. Mrs. Bryant testified that when she returned to the automobile around 1:00 P.M. she found the car in a damaged condition and the battery and a quart of motor oil missing.
Mrs. Cleo Clark testified that she saw an old blue pick-up truck drive up and stop in front of the parked car. She saw the two boys get out of the car. However, Mrs. Clark testified that one of these boys was larger than the defendant and one was smaller than the defendant. She did not see a third boy. She was unable to testify as to the time she saw the boys, other than it was after dinner.
Mr. Earl Clark, testified that he saw the defendant and two other boys pass his house traveling north on Clark road in an old pick-up truck between 11 A.M. and 12 noon on July 9, 1969. He had previously seen defendant's father in this blue truck. Mr. Clark stated that his house was between 1/2 mile and 1/4 mile north of Mr. Cleo Clark's house, where Mrs. Bryant's car was parked.
A battery identified as the one removed from Mrs. Bryant's car was introduced into evidence. Deputy Chamness of the Lawrence County Sheriff's Office testified that he had picked up the battery from Omie Johnson, the appellant's father, at his garage. Mr. Johnson had previously testified that he had found the battery that he gave Deputy Chamness in his old blue pick-up truck, which he found abandoned on a highway in Lawrence County. Mr. Johnson testified that his truck had been parked out in front of his garage on July 9, 1969. The defendant lived with him but he was unable to state who had driven the truck away from the garage.
The appellant made a motion to exclude the state's evidence on the ground that there was not sufficient evidence to take the case to the jury. The court then allowed the state to reopen its case and recall Mr. Earl Clark. The state again rested its case. The court overruled the appellant's motion to exclude the evidence and the appellant excepted to the ruling. The defense presented no evidence in its behalf.
We have examined the record with care, and it is our view that the court below did not err in denying the appellant's motion to exclude the evidence nor in denying the affirmative charge. Hannon v. State, 34 Ala. App. 173, 38 So.2d 26; Wilson v. State, 30 Ala. App. 126, 3 So.2d 136. Nor will we disturb the judgment of the trial judge in his action in denying appellant's motion for a new trial. Hannon v. State, supra; Wilson v. State, supra.
The judgment is affirmed.
Affirmed.