371 So. 2d 460 | Ala. Crim. App. | 1979
The defendant was indicted and convicted for grand larceny and sentenced to five years' imprisonment.
The defendant entered Delchamps Grocery Store on the Atlanta Highway in East Montgomery around 7:45 on the evening of March 12, 1978. She walked around the store and placed some items in her grocery cart. She went to the meat case and got two packages of bacon and fourteen hams and also placed them in her cart. The defendant then went to one of the aisles and "started putting it all in her purse" or diaper bag. She put the meat in the bag and left the other items in the cart. When confronted by the store manager and repeatedly asked what she had in the bag, the defendant said "nothing" and that she "didn't have anything in the bag".
The defendant "dumped" the meat back into the meat case when the store manager told her he was going to call the police. The defendant then left the store.
In Harris v. State,
"In this case — because of the use of a check-out counter system — the completed act of asportation did not occur until the two thieves went past or evaded the place of payment, i.e., the designated cash register.1 Immediately after they passed *461 that point they were halted with the goods in hand." Harris,
57 Ala. App. at 253 ,327 So.2d at 748.
The Harris case is not authority for the proposition that, for there to be larceny from a store using a check-out counter system, the completed act of asportation cannot occur until the individual takes the goods past the place of payment. The statement in Harris which appears to support such a holding is mere obiter dictum and not necessary or essential to the court's determination of the merits of that case. To the extent that Harris may or could be construed as supporting such a proposition it is hereby expressly overruled. The correct rule of asportation is stated in Jones, supra.
In McKinnon v. State,
"By concealing the albums underneath his coat and running from the building, the defendant acquired control over the property. In our judgment, the taking and asportation was completed when he concealed the items in his coat. See: Jones v. State,
55 Ala. App. 274 ,314 So.2d 876 ."
This issue is due to be decided against the defendant on authority of Jones, supra.
We have searched the record and found no error prejudicial to the defendant. The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges Concur.