KJ v. State

690 So. 2d 541, 1997 Ala. Crim. App. LEXIS 6, 1997 WL 15324
CourtCourt of Criminal Appeals of Alabama
DecidedJanuary 17, 1997
DocketCR-95-2212
StatusPublished

This text of 690 So. 2d 541 (KJ v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
KJ v. State, 690 So. 2d 541, 1997 Ala. Crim. App. LEXIS 6, 1997 WL 15324 (Ala. Ct. App. 1997).

Opinion

690 So.2d 541 (1997)

K.J.
v.
STATE.

CR-95-2212.

Court of Criminal Appeals of Alabama.

January 17, 1997.

*542 R. Wendell Sheffield, Birmingham, for appellant.

Bill Pryor, Atty. Gen., and Gail Ingram Hampton, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant was adjudicated delinquent on the underlying offenses of possessing a pistol about his person on premises not his own or under his control, a violation of § 13A-11-52, Code of Alabama 1975, and of receiving stolen property in the second degree, a violation of § 13A-8-18, Code of Alabama 1975. He was committed to the Department of Youth Services. The appellant presents three issues on appeal.

I

The appellant first contends that the court erred in adjudicating him delinquent under § 13A-11-52 because, he says, this Code section is no longer the law. Specifically, the appellant's asserts that § 13A-11-52 was repealed or superseded by § 13A-11-73, Code of Alabama 1975.

Section 13A-11-52 states:
"Except as otherwise provided in this article, no person shall carry a pistol about his person on premises not his own or under his control; but this section shall not apply to any sheriff or his deputy or police officer of an incorporated town or city in the lawful discharge of the duties of his office, or to [a] United States marshal or his deputies, rural free delivery mail carriers in the discharge of their duties as such, bonded constables in the discharge of their duties as such, conductors, railway mail clerks and express messengers in the discharge of their duties."
Section 13A-11-73 states:
"No person shall carry a pistol in any vehicle or concealed on or about his persons, except on his land, in his own abode or fixed place of business, without a license therefor as hereinafter provided."

As authority for his contention, the appellant cites Stinson v. State, 190 So. 303, 304, 28 Ala.App. 559, 560 (Ala.App.), cert. denied, 238 Ala. 272, 190 So. 305 (Ala.1939), in which the Court stated:

"[The Uniform Firearms] Act prescribes punishments and penalties for violations of any of the provisions of the Act, and in Section 22 thereof is provided: `This Act is intended as an entire revision of the subject matter contained herein and all laws or parts of laws inconsistent herewith are hereby repealed.'
"It would appear, therefore, that Section 3487 of the Code of 1923 [now § 13A-11-52] has been repealed and Form 32, of Section 4556, ceases to be the form prescribed in charging a defendant with a violation of Section 5 of the Acts of the Legislature, Extra Session of 1936, page 52.
*543 "The inhibition against the possession of firearms is now contained in Section 5 of the Acts of the Legislature, Extra Session of 1936, page 52 [now § 13A-11-73], which reads as follows: `No person shall carry a pistol in any vehicle or concealed on or about his person, except in his place of abode of fixed place of business, without a license therefor as hereinafter provided.' It will be seen that this is an entire change of the former law on the subject."

This Court is cognizant of the fact that the court's holding in Stinson seems to infer that the precursor to § 13A-11-52 was repealed by the enactment of the Uniform Firearms Act; however, the legislative history of the current § 13A-11-52 shows that the Legislature re-codified that section on two separate occasions following this Court's holding in Stinson, in 1940 and 1975. "It is a fundamental principle of statutory construction that in enacting [a] statute the legislature had full knowledge and information as to prior and existing law and legislation on the subject of the statute." Miller v. State, 349 So.2d 129, 131 (Ala.Cr.App.1977).

We hold that § 13A-11-52 is still in effect as evidenced by the following cases where defendants were charged under this section: C.D.J. v. State, 671 So.2d 139 (Ala.Cr.App. 1995), and A.M. v. State, 623 So.2d 421 (Ala. Cr.App.1993).

II

The appellant next contends that the court erred in adjudicating him delinquent because, he says, the State failed to prove that he possessed a pistol, a violation of § 13A-11-52. Thus, the appellant contends that the evidence was insufficient to find him delinquent.

"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985). Furthermore, a judgment of conviction will not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the judgment is so decided as to clearly convince the reviewing court that it was wrong and unjust. Jackson v. State, 516 So.2d 726 (Ala.Cr.App.1985)."

Powe v. State, 597 So.2d 721, 724 (Ala.), on remand, 597 So.2d 730 (Ala.Cr.App.1992).

The State's evidence tended to show that, on July 9, 1996, two Birmingham police officers pulled into a parking lot in front of a grocery store. As the officers were pulling into a parking place, Officer Kelvin Dudley noticed five males, one of whom was the appellant, standing near some vending machines. While the testimony is not clear, it appears that the machines were located outside of the store, but within close proximity to the store's entrance. Officer Dudley testified that, as the two officers approached the five individuals, he noticed the appellant began walking quickly toward the vending machines. Officer Dudley's testimony is further stated as follows:

"A [Dudley]: As I stopped the car he motioned to his waistband like this and started to pull an object out. I really couldn't see all of the object. It looked silver. I stop the car, get out and go towards him, he ducked behind a [vending] machine which was located at the front of the store. As he bent down beside the [vending] machine I heard a noise. I walked over there to him. I immediately grabbed him, patted him down, and took him to the patrol car. I was riding with another officer at the time. And I told the officer to see what he dropped behind the [vending] machine.
"Q [Prosecution]: Did you yourself ever get a look at any part of what that was that he had in his waistband?
"A: Other than a partial silver object.
"Q: A partial silver object, did you say?
"A: Yes.
"Q: Okay. And this silver object that you saw, where was it located?
"A: In his waistband right across here.
"Q: And was his waistband open to plain view or was it concealed in some way?
*544 "A: [He] had a T-shirt on the outside of his shorts.
"Q: Did it hang out over the waistband?
"A: Yes, it did.
"Q: Okay. What happened when you walked over to the [vending] machine?
"A: Officer Jackson—I directed Officer Jackson to go over there and see what was dropped behind the machine. And he retrieved a .9 millimeter firearm."

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Related

Ashurst v. State
462 So. 2d 999 (Court of Criminal Appeals of Alabama, 1984)
Smith v. State
557 So. 2d 1322 (Court of Criminal Appeals of Alabama, 1989)
Ex Parte State of Alabama
507 So. 2d 544 (Supreme Court of Alabama, 1986)
Sellers v. State
507 So. 2d 540 (Court of Criminal Appeals of Alabama, 1985)
Bradley v. State
577 So. 2d 541 (Court of Criminal Appeals of Alabama, 1990)
Miller v. State
349 So. 2d 129 (Court of Criminal Appeals of Alabama, 1977)
Jackson v. State
516 So. 2d 726 (Court of Criminal Appeals of Alabama, 1985)
Goodman v. State
401 So. 2d 208 (Court of Criminal Appeals of Alabama, 1981)
Carlisle v. State
465 So. 2d 1205 (Court of Criminal Appeals of Alabama, 1984)
Powe v. State
597 So. 2d 721 (Supreme Court of Alabama, 1991)
Ex Parte Faircloth
471 So. 2d 493 (Supreme Court of Alabama, 1985)
Faircloth v. State
471 So. 2d 485 (Court of Criminal Appeals of Alabama, 1984)
Braxton v. State
350 So. 2d 753 (Court of Criminal Appeals of Alabama, 1977)
Bagony v. City of Birmingham
371 So. 2d 80 (Court of Criminal Appeals of Alabama, 1979)
Stinson v. State
190 So. 303 (Alabama Court of Appeals, 1939)
Looney v. State
141 So. 2d 535 (Alabama Court of Appeals, 1962)
Morris v. State
342 So. 2d 417 (Court of Criminal Appeals of Alabama, 1977)
Sellers v. State
507 So. 2d 545 (Court of Criminal Appeals of Alabama, 1987)
Powe v. State
597 So. 2d 730 (Court of Criminal Appeals of Alabama, 1992)
A.M. v. State
623 So. 2d 421 (Court of Criminal Appeals of Alabama, 1993)

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Bluebook (online)
690 So. 2d 541, 1997 Ala. Crim. App. LEXIS 6, 1997 WL 15324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kj-v-state-alacrimapp-1997.