*1 prior expiration amended on November
leave un- discussed and
For the reasons herein principles in the case of
der the enunciated Homes, Inc., 41 Ala.
Haden v. Lee’s Mobile
App. cause is here- 136 So.2d judgment reversed and a rendered appellant, in the court defendant
below. and rendered.
Reversed
Charles WILDMAN
STATE.
Court of of Alabama
May 14, 1963. Judgment Denied and Modified Nov. *2 State, Tyra distinguish v. Ala.
594. We No. App. as to 5340. So. larceny of are Grand of crimes. Where the same kindred foundation, a is the transaction identical find a like guilt excludes verdict of one State, Ala. the other. Lawson App. 405. 33 So.2d Therefore, both to receive it was error arising burglary and of the verdicts Company. larceny at Hardware Braswell State, 39 So. Lucas Ala. See Linden, Drinkard, appellant. W. John State, L.R.A.,N.S., 412; Wilkerson v. Ala.App. 348. 130 So.2d Gen., Flowers, Atty. M. Richmond Gen., Gish, Atty. Jr., for the Asst. Paul T. except did not The defendant State. failed to charge. having The court oral charges aris- jury the two tell that as to CATES, Judge. entering breaking ing from the Company only con- Hardware indict- Braswell trial on four went to 'Wildman legally indictments) was (on Marengo viction the two Circuit ments returnable upon himself possible, incumbent made it Court: for a (the court) to the two verdicts return charge 5337, a of assault 1) No. Case by jury. bar choice The constitutional Crawford, Earl intent to murder but punishment beyond once for an act Demopolis; policeman City (cid:127)a in Law- Judge done Carr’s reason once was State, supra. son v. he was 2) No. wherein Case degree burglary accused second judgments are reversed and the The n against the Braswell Hardware Com- court. proceedings remanded to the circuit Demopolis; pany in and remanded. Reversed n 3) larceny Case No. $1500 Company; Hardware (cid:127)from the Braswell On (cid:127)and Attorney contends The General and enter- 4) breaking No. Case of assault affirmed the should have Merchants Gro- ing the warehouse of burglary of the with intent to murder (sec- cery Company intent to steal Grocery Company because Merchants degree burglary). ond three circumstances: counsel, Wildman, agreed advised that, aft- testimony 1. There was open to- four cases tried burglary, Wildman ernoon before the separate gether. brought jury The in four public street seen on a another man were gave judg- guilty judge verdicts of direction looking from sidewalk sepa- on each verdict ment and sentence through company grocery window rately. company’s vault said the which the witness visible. evi there was no consider that We having been shotgun A identified as dence Wildman’s conviction company on the from the hardware the stolen nor of assault with intent to murder com- night grocery Company. same was found in Grocery burglary of Merchants pany. 192 So. Ala.App. Nelson
35ft
police
Mississippi
possession
recently
When the
arrested
stole»
Wildman, they
goods
in the trunk of the
found
can
verdict based
this-
*3
(but
riding
in
he
guilt
larceny.
automobile
which
was
fact as
inference of
Also,
contrary
brief —did
support
to the State’s
such will
an inference of bur
which —
belong
glary
not
not
proof
to him and which was
under
if
breaking
there is also
and
which,
control)
paint scrap-
his
tools
so
entering
permit
connected in time
toas
ings
like,
Toxicologist
and the
the State
con- the further
larceny
inference that the
product
cluded had been
to
used
force entrance in
breaking
entering.
of the
and
company
grocery
the hardware
com-
Attorney
General would have
dis-
us
pany.
regard
State, Ala.App.
Lawson v.
33
These,
indeed,
suspicious circum-
are
guilt
So.2d
of lar-
on
notion that
But,
possession
stances.
the rule of
unlike
ceny
burglary
and
not the same in law
are
recently
goods,
stolen
these facts are
prosecution
and hence the
should not
as,
alone,
not such
standing
legally
a
prosecution
be bar to the
other.
jury’s
a
verdict.
this,
To
a
reliance is had
State,
cases of Gordon v.
Ala.
Bowen
Emphatically, the scintilla rule does
State,
106 Ala.
17 So.
and Smith
apply
not
in
tip
criminal cases. To
State,
Ala.
II. ceny, e., misdemeanor, preclude i. could subsequent felony trial for a committed toi As to the two Braswell Hardware Com- accomplish simple larceny. pany cases, point at the outset we should out (other that the sole circumstance State, supra, In Smith v. Mr. Justice suspicion matters of Stakely those opinion referred in wrote the Bowen above) having consisted of Wildman’s in larceny was stated “that are possession, his Mississippi when found in in though law both in- same even along flock, in others about dictments are facts- founded same currency. (e. $100.00 He had also coins jeopardy and that former was no defense g., two Stone dollars) Mountain being subsequently which to half indicted and tried for were identified belonging larceny.” the hard- Bowen and Smith each company ware having missing and as been subsequent acquittal involved trial after from and after the discovery charge the break- of another which was not necessar- entering. ily legal ingredients embraced in the its presented single now first trial was for carnal issue
former. Smith’s
imposition
girl
sec- whether
knowledge of a
under twelve: his
concurrent
rape.
in the
degree
with intent to
sentences
assault
first
ond was for assault
attempted robbery
de-
first
with that
These cases concern themselves
prohibition
gree in
case violated the
upon plea
phase
jeopardy evoked
of double
of double
contained
sec-
acquit.
of autrefois convict or autrefois
*
**
Law,
tion 1938
the Penal
trial had
The Lawson
shows
case
******
*4
question
proper
verdict and
of
separate
“It
clear that
if
and dis-
is
punishment
judge.
trial
is before the
they
committed,
tinct acts were
and that
the
violated more than one section of
case,
was con-
In the instant
Wildman
Law, punishment
for
Penal
each
charges
separate
of felon-
fronted with two
they
proper although
them would be
ies,
e.,
burglary
and
degree
i.
second
**
single
out
arose
transaction.
larceny.
in the Lawson case.
true
This was
open
dispute
if
It is also not
to
adopting the 1923
Legislature,
in
merely
inseparable
single
there were
Code,
for
in our statute law
inserted
statute,
act
violative of more
one
provision
found
now
first 'time a
which is
or if
which itself
there were
act
287,
1940,
15,
reads as
which
Code
T.
§
violated one statute and was a material
follows:
another,
element of the violation of
Any
or omission declared
287.
act
Ҥ
single punish-
be
would have to
there
punishable
different
and
criminal
* * *
ment.
law,
provisions
ways by
different
******
punished only
of such
under one
shall be
Appellate
acquittal
“The determination
provisions,
or
and conviction
imposition of concur-
prosecution
Division that the
any
under
one shall bar
multiple pun-
rent
constitutes
under
sentences
same act or omission
for the
1938, al-
ishment in violation
section
any
provision.”
other
seeming support in
though
without
not
to be found
Similar enactments are
cases,
opposed
purpose
is
some
California,
Arizona,
New
law
statute
*
* *
statute.
of that
juris-
Utah,
possibly in other
York and
and
*
*
*
*
*
*
dictions.
courts,
stat
under the
California
expressly held in line
has
California
previously re
ute to which we have
single
constitut-
act
the Lawson
that a
ferred,
position
im
take
can merit
grand theft
burglary
both
position
concurrent sentences
punishment. New York has held
but one
im
could not be
sentences
cumulative
burglary
constituting
single act
that a
punish
multiple
posed
amounts to
still
period
penal
servi-
but
assault merits
cate
for
given
reason
ment. The
28,
Oliver,
163
People
4 A.D.2d
v.
tude.
sentence
gorizing the concurrent
N.Y.S.2d
adversely
might
is that
parole.
potential
prisoner’s
York,
affect the
larceny,
at
burglary
New
As
458-459,
453,
People Craig, 17 Cal.2d
equivalent
enactment
its
the time of the
Kehoe,
403;
33 Cal.
People v.
110 P.2d
of its
supra, by
provisions
other
§
This is
361 that the defend- eluded offenses insures long recognized that eral have go unpunished if will there ant not imposition sentences of concurrent high- an error in his conviction punish- defendant’s does not add to the degree resulting in an ac- States, est ment, offense Hirabayashi United quittal to that count. 81, 85, 320 S.Ct. 87 L.Ed. U.S. 63 States, 1774; United Brooks v. problem “It is clear that the before us 432, 441, 69 L.Ed. 45 S.Ct. U.S. very may readily not half- solved States, 699; Pierce v. United U.S. way. may may Either defendant or 542; 239, 252, L.Ed. S.Ct. prosecuted judgment not be to a final Cir., States, v. United Maxfield several related crimes in a 593, 595; Fitzpatrick F.2d v. United prosecutor requir- Were a indictment. Cir., 472; States, 87 F.2d White proceed, toed elect which crime to States, Cir., v. United 16 F.2d problem at would be solved York, however, outset. New has chos- be overlooked. which is a will in no the fact of relator’s conviction of the indictment, and pleaded guilty. All ment to a “Another tice sentence. of the relator issue as to its defendant’s criminal concurrent sentence from his record first is not valid. crime of assault with intent to kill. offenses is defendant is his detention. He is convictions determining fender. subdivision of shorter sentence runs case of “ * * * section 1938 [*] more such— longer, the offenses count shorter; were degree proper nevertheless be recital having than one [*] The claim of only punishment. way important composite In followed any to be 3 defendant there *5 nor his must it does not inflict any sentence. Removal of a remove the mark or dim If the California validity; here convictions are obtained additional restraint or status section 1941 Where expressly protected by concurrent long event, count, adopted, stand; by multiple no of several included for factor should concurrently acts that as a list of sentences in cumulatively punishment does possible assault the conviction the defendant criminal there is in a multiple is at then there subsequent imposition When the from sentences upon in all the forbid count detri- prac- issue hav- [*] not for act of- no in a a conviction latter 26 goods, People 357 Neal v. ference from pital. Section 654 ways by both which is made provides not be have so punished Code pressly provides “It was of the air defendant quittal In Brophy, court’s defined discretion. Our courts sarily People N.E. single indictment. Section 279-a ex- related crimes in Procedure authorizes the either one bars a “Section 279 of the en to counts of conviction or Cal.Rptr. P.2d California provisions, burglary may provide results, or conviction and v. required held. error 273 N.Y. under more than in compressor 63 any different be Sullivan, and a possession v. 55 Cal.2d part, L.R.A. quote there punished indictment’ burglary an otherwise. McFarland, in People punishable but in no respect that ‘the to elect between the impose ‘An act or omission acquittal. separate case prosecution as follows: are two P.2d of the 90, provisions 353. There neces- 173 Code ordinary ex under either of involving 6 by sentence sentences for 9 N.Y. case can be rel. Prince v. except recently N.E.2d inside hos- one; people Penal 58 Cal.2d in different counts Cal.Rptr. 607, leading cases, means of in- theft joinder * * * Criminal From this of this for the 122, case, taking an ac- under in directly Code upon shall in 109; stolen 65 a a ” of concurrent sentences lesser in- same any act or other.' omission under New York court was care principles governing applica rule. The by ‘single that the issue’ be ful to stress clarified
tion of section were California, against Neal State fore it was whether the statute Cal.Rptr. seq., punishment 55 Cal.2d 18 et violated double out, pointed imposition P.2d 839. It was there ‘concurrent sentences’ analysis original), earlier de and the de (italics several in the cisions, prohibition largely ground of the stat that the cision rests applies against con ute can never double concurrent sentences only punishment. ([159 “act” in the ordi N.Y. where ‘one double stitute nary 205-206, 207-209], 140 N.E. pp. sense’ involved but also S.2d at Moreover, seq.) conduct’ which pp. there is a ‘course of 286 et 2d at language in the violates more one statute there is considerable comprises transaction two opinion indicating an indivisible that whether punishable than one statute or under more crimes are committed with same 654; importance. meaning within the great of section intent different is of divisibility 206-209], of conduct pp. of a course ([159 at N.Y.S.2d objective depends upon 285-286.) pp. intent and Arizona N.E.2d at defendant; Hutton, all the that if 87 Ariz. court, State objective, 187, 188-189, although incident to one offenses are 349 P.2d any punished for may be reasoning defendant that consecutive sentences than one. imposed not for more ..oneof them but and theft could Court, Superior (See statute, also con Seiterle held that under the 436, 439, Cal.Rptr. imposed A.C. should be current sentences [Cal. 397] in Neal 697.) 369 P.2d It was held case justice. The Utah interests of *6 "that, 35, means of at Jones, where is arson the 13 Utah State [2d] merely inci- tempting 262, murder and is a which considered statute P.2d (cid:127) primary objective of com dental to the conclusion based its like section murder, be cannot mitting the defendant prior part authority of a Utah attempt ;punished and for both arson Harris, decision, Rogerson v. [111 ed murder. without Utah 178 P.2d 330] decision
recognising that the earlier tcisions “‘On sfe the which [*] basis of other out-of-state have been [*] [*] called to our # [*] de had involved a statute differentfrom n ics added.) the one before which was us. (Ital quite properly said be it cannot attention seen, evidence, is suffi- as we have a trend majority rule or that is there to both of bur- cient convictions respect to how with of decision respect glary theft with be 654 should such section statute compressor taking to air the Except for decisions from applied. hospital. which the the The inference Utah, Arizona, York, none New jury permitted in that was to draw The low statute. has involved the regard entered that defendant was to be York seem in New er court hospital that with intent to steal and People v. Sava (compare conflict In compressor taking was the of the air N.Y.S.2d rese, 1 Misc.2d the culmination of intent. The rec- Zipkin, 835-836, People v. with nothing indicating that he ord contains 552, 118 N.Y.S.2d 1952, 202 Misc. com- hospital the intent to entered the appears to be what 698-699), and (Ital- than mit some crime other theft. state, People [ex in that leading case added.) In circumstances the ics these N.Y.2d Jackson, only rel. that the reasonable conclusion Maurer] is taking 140 N.E.2d 203], entry hospital N.Y.S.2d the [159 parts compressor of the air were the California consistent is
36$ charges upon can a the of conduct were series he based continuous course theft; objective, (Italics added.) act.” motivated one same although complete burglary, before the our This section has come law since into committed, to theft was incident was Hence, the Gordon and Bowen cases. perpetrating and a theft. means believe that the construction the courts í{< long íjj ‡ of the states which have administered if: be respect procedure “With to the procedure their criminal under such stat- appeal pun- double followed on utes, part while not a our received law* erroneously imposed, ishment has been logical be- nevertheless affords reason to should stressed that section 654 it be legislature lieve and courts proscribes punishment, not double thought California and New York com- conviction; giving conduct rise double mon principles- law and constitutional to more one offense within the against double jeopardy needed reinforce- may meaning of the statute result prevent separating ment to the splitting or crimes, only initial conviction of both of common law crimes. offense, which, the one of more serious Accordingly, opin we conclude that the may punished. (People v. Chess- As; State, supra, ion Lawson v. is correct. man, 467, 497, 679.) Cal.2d P.2d State, Ala.App. 265, Wilkerson therefore, procedure, appropriate So.2d it to be is noted that there judg- is to eliminate effect act of the defendant Under assault. ment lesser offense insofar as the evidence we reversed because there was * * * penalty alone concerned. prosecutrix attack (Italics added.) dividing hence could not here, “Of the two offenses involved single physical act into two crimes mere degree burglary second is the one sub- ly might because there have been mental ject greater punishment. (Pen. e., aspects, rape i. intent to Code, 461, 489.) Accordingly, §§ other of intent to murder. necessary judgment to reverse the inso- stands; analyzed, So case Wilkerson far as it relates to *7 for against for principle splitting charges, grand theft.” whereas the instant case one of double- majority We believe of the the comment punishment evidence of intent opinion State, supra, in McFarland v. suf- of two crimes.. an inference ficiently in- demonstrates the weaknesses opinions herent of the Utah and Here, in the- Lawson Arizona courts therein referred That to. punishment degree burglary for both second highest York Cali- courts New grand larceny power are within the appear agreement fornia in substantial toas only judge. Accordingly, the trial modification of stat- common law necessary, Lawson, it was remand utes, persuasive. highly we consider to be proper the two cases for sentence under one judgments or the other conviction.. Moreover, expressly this court has relied 287, supra, insofar as the second § jeop- court, clause of the section refers double As California we believe' Ala.App. ardy. applicability statutory prohibition; Crosswhite v. this court, ap So.2d after against wherein double should be pointing plied out that the trial was in error larceny sustaining prosecution’s for demurrer where the uncontradicted evidence plea to a jeopardy, completed of former went on to larceny act of stands alone say concern, prisoner’s section of in allegation instant “[t]his hito, permit law does he premises- crime to tent when he entered the offenses, subdivided into two or nor which he more had broken.
Accordingly, motu, ex modify mero judgment given original
our on deliverance respect to Circuit Court Cases No. 5338 proper
and No. 5339 for sentencing herein Otherwise,
indicated. those two convictions
should stand affirmed. application rehearing not em-
bracing question is not well taken.
Judgment original deliverance modi-
fied as to Circuit Court Cases No. 5338 and provide
No. 5339 to for affirmance of con-
viction but with proper remandment Sentencing.
EVERGREEN INC.
STATE DEPARTMENT OF INDUSTRIAL RELATIONS, al. et
Court Alabama.
Jan. Granted Feb. *8 May 12,
Further Denied