399 So. 2d 946 | Ala. Crim. App. | 1981
A jury found defendant (appellant) guilty of burglary in the third degree as defined by §
The evidence on the trial is summarized in appellant's brief as follows:
"The State's witness, Robert F. Joyce, an officer of the Huntsville Police Department, testified that on February 17, 1980, at about 9:30 p.m. he arrived at the Circle J Western Store on North Memorial Parkway. Officer Joyce was accompanied by Officer Mark Shahan also of the *948 Huntsville Police Department. The manager of the store, Gerald Stevens, opened the door and Officer Joyce and Mr. Stevens went into the store. A man, whom Officer Joyce and Mr. Stevens identified as the defendant jumped up from behind the counter and ran towards the back of the store. After a struggle at which time Mr. Stevens kicked the defendant, the defendant was arrested. Certain belt buckles had been displaced within the store. There was a hole in the wall of the store building outside of which were located twelve to thirteen pairs of blue jeans.
"Mr. Stevens testified that he was the owner of Circle J Western World, the same being a corporation in which he owned all of the stock. He further testified that he had locked the store when he left at approximately 9:00 p.m. and that he had not given the defendant permission to go into the store.
"The defendant testified on his own behalf, admitting his presence in the store but asserting that he had run other persons off the premises and gone into the store after running them off."
There is no contention that the evidence was not sufficient to support the finding of the jury that defendant was guilty of burglary, and our review of the transcript convinces us that there is no reasonable basis for such a contention. However, appellant contends that the evidence did not show that the building alleged to have been burglarized was "a building of Circle J Western World, Inc., a corporation," as alleged in the indictment. He expresses the first issue presented by him as follows:
"The trial court erred in convicting the defendant of burglary where the State failed to prove the existence of the corporate victim alleged in the indictment and where the defendant on motion for new trial affirmatively showed that said corporate victim did not exist."
In connection with the quoted issue, appellant challenges the constitutionality of Code 1975, §
"In the trial of criminal cases it shall not be necessary for the state to prove the incorporation of any corporation mentioned in the indictment, complaint or information unless the defendant, within 30 days after indictment if the defendant is under bond or within 30 days after arrest on capias, denied the existence of such corporation by a sworn plea."
Appellant recognizes that §
Appellant purports to advance argument not made in cases that have upheld §
No question was raised before or during the trial as to the constitutionality *949
of §
Aside from any question as to the constitutionality of §
"Q. Mr. Stephens, are you the sole owner of Circle J Western World?
"A. Circle J now is incorporated. I own all the stock in it, so I guess I would be the sole owner.
"Q. You own all the stock in Circle J Western World?
"A. Yes, ma'am.
"Q. So there are no other stockholders in that corporation?
"A. No, ma'am. There was at the time we incorporated, then they sold all of the stock back to me.
"Q. And it's Circle J Western World, Incorporated?
"A. Yes, ma'am."
Appellant urges that the Habitual Felony Offenders Act is in deprivation of a defendant's due process right in that it does not require notice to defendant prior to his conviction that he would be sentenced as an habitual offender. He also urges that "the application of the Habitual Offender Act to him constituted cruel and unusual punishment violative of the Eighth Amendment to the United States Constitution because the court sentencing the defendant could not consider the nature of the underlying felonies or defendant's prior treatment and response to a particular treatment subsequent to those convictions since sentencing under the Habitual Offender Act is mandatory once the requisite number of felonies have been proven." Both contentions have been decided adversely to appellant, particularly and recently in Holley v. State, Ala.Cr.App.,
We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.
The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.
AFFIRMED.
All the Judges concur. *950