352 So. 2d 840 | Ala. Crim. App. | 1977
Appellant was convicted of grand larceny of an automobile and sentenced to imprisonment *841
for four years. The evidence was essentially the same as that presented in a case wherein he was previously tried and convicted of burglary, from which he appealed. His conviction in the burglary case has been affirmed. Bibb v. State, Ala.Cr.App.,
According to the evidence for the State without which there could have been no conviction of defendant in this case, the automobile was stolen during the course of the same burglary of which he has been convicted. The particular automobile was in one of the driveways of the automobile sales company, at the time according to the evidence, defendant broke into the office of the company, obtained keys to automobiles and promptly thereafter drove away from the establishment in the automobile that he allegedly stole. According to testimony of Kenneth Starks, the strongest witness for the State, the following occurred:
"Q Now, I will call your attention to the early morning hours before daylight on October 10, 1975. Were you with Gus Bibb then?
"A Yes.
"Q Where were you, Kenneth?
"A At his house.
"Q Where were you before then?
"A At home.
"Q Okay. Where did you go when you left Gus's house?
"A Went downtown.
"Q Where did you go downtown?
"A To Courtesy Ford.
"Q You went to Courtesy Ford?
"A Yes.
"Q Was it opened or closed?
"A Closed.
"Q What happened when you got out at Courtesy Ford?
"A Gus T. broke in.
"Q How did he get in?
"A With a board.
"Q What did he do?
"A He busted the window out.
"Q Kenneth, what did you do? What happened after Gus broke the window out there at Courtesy Ford?
"A He took the keys.
"Q What keys?
"A A cardboard full of keys.
"Q What did he do with them?
"A He took them and took a Riviera and we all got in the Riviera.
"Q Was that a 1970 Buick Riviera? [The particular automobile involved in this case].
"A Yes."
Code 1940, T. 15, § 287, provides as follows:
Any act or omission declared criminal and punishable in different ways by different provisions of law, shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision."
Intent to steal or commit a felony is an essential part of the gravamen of the crime of burglary. Wicks v. State,
We follow Yelton, supra, in holding that a final conviction of burglary constitutes a bar to defendant's prosecution for the larceny charged in this case. In the light of Burress v.State,
The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.
Judgment of conviction affirmed; cause remanded for concurrent sentence.
AFFIRMED: REMANDED FOR CONCURRENT SENTENCE.
All the Judges concur.