Wheat v. State

372 So. 2d 400, 1979 Ala. Crim. App. LEXIS 1337
CourtCourt of Criminal Appeals of Alabama
DecidedJune 5, 1979
Docket3 Div. 63
StatusPublished
Cited by3 cases

This text of 372 So. 2d 400 (Wheat 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
Wheat v. State, 372 So. 2d 400, 1979 Ala. Crim. App. LEXIS 1337 (Ala. Ct. App. 1979).

Opinion

TYSON, Judge.

James Bruce Wheat was charged with the second degree burglary and grand larceny of certain properties belonging to Berea Church in Montgomery, Alabama, in a two-count indictment. The jury found the appellant “guilty of grand larceny,” and the trial judge set sentence at seven years imprisonment.

The appellant made a pretrial motion to suppress, moved to exclude the State’s evidence, and requested, in writing, the affirmative charge. From adverse rulings on these matters, appellant prosecutes this appeal.

Reverend Bruce Walker testified that, on September 13-14, 1978, he was minister of the Berea Church, located at 223 Fleming Road in Montgomery. In response to a telephone call from Detective Murphy of the Montgomery Police Department, Reverend Walker went to Police Headquarters where, in Detective Murphy’s office, he identified a Gibson bass guitar and a Martin Model 701 guitar as belonging to the Berea Church. Reverend Walker testified that he authorized the purchase of both of these guitars with church funds.

Reverend Walker also indicated that he knew the appellant, James Bruce Wheat, and that Mr. Wheat and his wife had attended this church several times, and, together with one Wayne Bordes, he had contracted with the two men to paint the exterior of the church. Reverend Walker indicated that his church had been trying to help the Wheat family to get established in Montgomery.

Reverend Walker indicated that, about 6:00 on the night of September 13, 1978, Mr. Wheat came to the church and they discussed some personal matters, that Mr. Wheat subsequently came to the 7:30 service that Wednesday evening. After church, Reverend Walker locked the building, including the office entrance, and checked all exits. The following morning, Reverend Walker was called to the school building and observed that a Sunday School room, off the auditorium, had a broken window. He stated that this was on the first floor. He stated that he had not given anyone permission to enter the building, and the broken window was discovered about 9:00 a. m. on Thursday, September 14, 1978.

About a week later, on either Thursday or Friday, Reverend Walker stated, he was called to the Montgomery Police Headquarters and there he recovered two speakers, a custom amplifier, and three practice guitars. He stated that these items were identified at Police Headquarters as the ones missing from the church, on September 26, 1978.

Reverend Walker testified that he identified the two larger guitars, the Gibson bass guitar and the handmade Martin guitar, on September 14,1978, at Police Headquarters.

In response to cross-examination and redirect, Reverend Walker gave the serial numbers and a more specific description of the speakers as being Peavy Column speakers, that the amplifier was a Custom 300 Series, that the Martin handmade guitar was a No. 701, and the Gibson Bass guitar was an Eb/lo model.

Reverend Walker indicated all these items had been bought with church funds at [402]*402his direction for the use of the church and its membership. He further indicated that all of these items were missing on the morning of Thursday, September 14, 1978.

Harold Barnett testified he lived in the Jasmine Hill section of Wetumpka, Alabama, and on the night of September 13, 1978, he had stopped by the “H & T Grill” on Highland Avenue in Montgomery, where he had a couple of drinks with two friends. Mr. Barnett indicated that two men came into the grill, and that one, whom he testified, in his best judgment, as the appellant, James Wheat, came over and asked if he was interested in buying some guitars. The man stated that he wanted $200.00 for them. Mr. Barnett stated that he told him he was not interested at that price, but that he might take a look.

Barnett indicated that he walked outside the grill and looked at the items in the trunk of the car, then went back inside the grill and cashed a check for $100.00. He stated that he offered $100.00 to the appellant for three used guitars, an amplifier, and two electric speakers.

Mr. Barnett indicated that he drove home that evening and moved these items, which he bought for $100.00, into his playroom. He stated that next morning he called the city detectives at the Montgomery Police Department and asked if they had any information on any missing properties, and upon being advised that they did not, he called a friend of his, one Butch Taylor, a deputy sheriff, and made the same inquiry. He stated that a Montgomery policeman and also Taylor indicated on Friday morning that they had no record of such missing properties, but the following Monday or Tuesday, he talked with his friend, Deputy Sheriff Taylor, who told him the Montgomery City Police had a missing report on several items, and he and Deputy Taylor loaded the items and carried them to the Montgomery Police Headquarters.

On cross-examination, Mr. Barnett stated that he was a used car dealer by occupation and that he had had several drinks on the night of September 13 before purchasing the items for $100.00 at the H & T Grill. He stated that he saw the two men come in between 10:30 and 11:00 p. m., and the purchase was made soon thereafter. He stated that he could not be positive of the identity of the appellant, but that he thought he was the same man. He stated that he had gotten the appellant’s name and description from the manager of the H & T Grill over the telephone. He stated that, when he was advised that the instruments were probably stolen, he called the Montgomery City Police Department and took the instruments to them.

Montgomery Police Detective G. E. Murphy testified that he received a report from Detective R. D. Mobley that some missing musical instruments were in a red vehicle parked at the Downtown Lounge on Jefferson Street, Montgomery, Alabama, that two men were driving the vehicle and it had an out-of-state license. Detective Murphy stated that he went to the Downtown Lounge that morning and saw a red automobile answering the description parked near the lounge with the doors open. He approached the vehicle and observed a man lying on the back seat asleep and a woman on the front seat asleep. He stated that he asked his partner to watch the two people in the car and he entered the lounge. He walked over to where he saw the appellant seated at a table with another male and two women, and they were having some drinks. Detective Murphy stated that he tapped the appellant on the shoulder, identified himself as a Montgomery police officer, and asked the appellant to come outside as he had a matter he wished to discuss with him.

Detective Murphy stated that the appellant hesitated and then suddenly, as he arose, whirled and pulled a knife. Detective Murphy stated he then disarmed the appellant and handcuffed him, then placed him under arrest for assault.

On cross-examination Detective Murphy indicated that the knife was a letter opener with sharpened nine inch blade. He stated that the appellant was advised of his Miranda. rights at the scene of the arrest, and that he was also advised of his Miranda rights a second time, which he signed, ad[403]*403mitting that he had received these, at Police Headquarters later that day. The appellant, without any threat, intimidation, coercion, or inducement of any kind, then gave a statement admitting his participation in the larceny.

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Related

Talley v. State
479 So. 2d 1300 (Court of Criminal Appeals of Alabama, 1985)
Childress v. State
455 So. 2d 175 (Court of Criminal Appeals of Alabama, 1984)
Perry v. State
439 So. 2d 823 (Court of Criminal Appeals of Alabama, 1983)

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Bluebook (online)
372 So. 2d 400, 1979 Ala. Crim. App. LEXIS 1337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheat-v-state-alacrimapp-1979.