Harris v. State

346 So. 2d 503, 1977 Ala. Crim. App. LEXIS 1360
Procedural entryThis page is a short order in Harris v. State. Read the opinion of the Court — 347 So. 2d 1363
Court of Criminal Appeals of Alabama·Decided April 19, 1977·No. 6 Div. 742·Published

Opinion

TYSON, Presiding Judge.

The appellant was charged in a two-count indictment with the grand larceny of, and buying, receiving, or concealing, $395.00, the personal property of John T. Bonasera. The jury found the appellant guilty of grand larceny, as charged, and fixed the value of the stolen property at $395.00. The trial court entered judgment in accordance with the verdict and set sentence at two years imprisonment in the penitentiary.

John T. Bonasera testified that on September 28, 1972, he had been working for ten years at Ousler’s Sandwich Shop in Birmingham, Alabama. A part of his duties was to make bank deposits, and on this date he had a blue bank bag containing $395.00 in cash and some checks totaling $508.00, and was walking toward a truck on the parking lot at 201 42nd Street, South, when he saw a black man crawling on his hands and knees. Just as Bonasera opened the door to the truck, the man shoved him against the side of the truck, grabbed his bank money bag, containing the deposit, then got up and ran. Bonasera began chasing him on foot for about two blocks. He stated that the man looked back several times and he got a good look at his face. He stated that the man got into an automobile, that Bonasera’s supervisor at the Sandwich Shop picked him up in a truck and they began to give chase. He stated that the man got in on the righthand side of the car at the end of the alley on 43rd Street, and that when they got within fifty feet of the car he wrote down the tag number. Bonasera described the car as a blue and white 1964 Pontiac with a Jefferson County tag, No. 1-16674. He stated that the automobile doubled back and almost hit the truck in which he was riding, that the vehicle was lost in traffic near 43rd and 3rd Avenue, South, in Birmingham. He stated that he gave a description of this individual to Sergeant Hill of the Birmingham Police Department and advised him that he had been headed for the Exchange Security Bank on 3rd Avenue, South, at the time of the incident.

On cross-examination Mr. Bonasera testified that Mrs. Christine Elmore was the owner of the Ousler’s Sandwich Shop, and that the proceeds belonged to her, though they were in his possession at the time the money bag was seized from his hand. He testified that while he wore glasses, his vision was 20-20, and that in the process of chasing the appellant on foot, he had a good look at the man’s face as he kept looking back every few feet while running.

Mr. Bonasera stated that he selected the appellant’s photograph from some sixteen photographs of individual blacks which were brought to him by Sergeant Hill, and that he did not view the appellant at a lineup, though he subsequently saw him at a preliminary hearing in Judge Gwin’s court. Bonasera made a positive in-court identification of the appellant and of the tag number as he wrote it down while giving chase in the pickup truck. He testified there were two other black men in the Pontiac automobile which picked up the appellant. He described the appellant as having an Afro hairdo and a mustache at the time of the incident.

Charles L. Daniels, Jr. testified that he was the Office Manager for Woods Chevrolet, located at 228 South 19th Street in Birmingham. He testified that his company maintained copies of the “G.M.A.C. Contract” when automobiles were purchased, and that on July 18, 1972, his company sold a 1964 blue and white four-door Pontiac Catalina sedan to Warren Harris, Jr., the appellant, who at that time resided at 1508 17th Street, Southwest, in Birmingham. He testified that his company had purchased the car on a trade-in from Mr. Wil[505]*505lard G. Wynn, and that the salesman who sold the car to the appellant was Mr. Cruce. He testified that the license tag number at the time of the sale was 1-16674.

Glen Cruce testified that for twenty years he had been employed as a salesman at Woods Chevrolet in Birmingham. He testified that the buyer of the contract, dated July 18,1972, was Warren Harris, Jr., the appellant, that the automobile he purchased was a 1964 four-door Pontiac Catalina sedan with a Jefferson County license tag, No. 1-16674. Mr. Cruce testified that he typed this contract, that he remembered the appellant making the purchase, that it was a cash sale, and that the contract bore appellant’s signature.

Edmun K. Steedman testified that he was custodian of the records for tag registration in the Department of Revenue, Jefferson County, Alabama. He testified that the Alabama license tag for 1964, No. 1-16674, was originally registered in the name of W. G. Wynn of 1120 Columbiana Road, Birmingham, Alabama, and on July 21, 1972, was transferred to Woods Chevrolet Company. He testified that this tag was subsequently transferred to Warren Harris, Jr., of 1508 17th Street, Southwest, in Birmingham, and that the registration indicated this was for a 1964 Pontiac Catalina four-door sedan.

On cross-examination Mr. Steedman indicated that the transfer from Woods Chevrolet Company to the appellant on his office records was dated November 15, 1972.

Christine Elmore testified that she was the owner of Ousler’s Sandwich Company on September 28, 1972. She testified that shortly after 1:30 p. m., Mr. Bonasera left the building, and walked across the parking lot to take a deposit to the Exchange Security Bank. She said that there were about three others walking in the parking lot just prior to Mr. Bonasera’s going out there, and that she saw a black man shove Mr. Bonas-era against the side of the truck and grab the money bag, then start running. She stated that Mr. Bonasera started running after him, that she and the others followed on foot, that one of the drivers got into a truck, passed them, and picked up Mr. Bo-nasera, then gave chase to the blue and white Pontiac car, which subsequently got away from them in traffic. She said that Mr. Bonasera had run about one-half a block when he was picked up. She stated that there were three black men in the Pontiac when they doubled back and passed them, then got away in traffic. She stated that a Mr. Elgin Reeves was driving the truck when they attempted to pursue the car. Mrs. Elmore further stated that she could not positively identify the man who grabbed the money bag from Mr. Bonasera.

Gerald R. Hill testified that he was a sergeant with the Birmingham Police Department on September 28, 1972. He stated that he went to Ousler’s Sandwich Shop at 201 42nd Street, South, and talked with Mr. Bonasera and Mrs. Elmore. He stated that he was given a description of a black male by Mr. Bonasera, and that on October 3, 1972, he returned with sixteen black and white photographs of black males and placed them face up, five or six in a row, for Mr. Bonasera to check. He testified, that Mr. Bonasera had described his assailant as being a black male in his twenties and around six feet two inches tall, weighing approximately 173 pounds, that he was “slender built, medium complected, light mustache and semi-Afro hairdo.” Sergeant Hill stated that Bonasero also identified the 1964 Pontiac blue and white, four-door, with a Jefferson County license tag, No. 1-16674. He stated that without hesitation Mr. Bonasera selected the photograph of the appellant, Warren Harris, Jr. The several police photographs were placed in evidence. Sergeant Hill testified that they did not conduct a police lineup, but that Mr. Bonasera, upon examination of the photographs, and also at the preliminary hearing in Judge Gwin’s Court, identified the appellant. Further, from the record (R. 85):

“Q. I will [ask] you whether or not Mr.

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Harris v. State, 346 So. 2d 503, 1977 Ala. Crim. App. LEXIS 1360 (Ala. Ct. App. 1977).

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