Spears v. State , 55 Ala. App. 456 ( 1975 )

DeCARLO, Judge

(dissenting).

It is my judgment that this case should be affirmed.

From the following portions of the transcript, the evidence of the State shows things of value were deposited in the office of Winningham Auto Sales. The manager, Mr. Price, was asked:

“Q. What was the condition of the lot and the building when you returned?

“A. When I got there the sergeant was standing there and I noticted (sic) the plate glass window was knocked out. On the inside there was paper throwed all over the floor and all the drawers were out. Everything was ramshackled, and there was blood on the glass inside and drops of blood on the desk. Everything they touched looked like they might have been cut and bleeding.” (Emphasis ours).

“Q. Which one of these windows were broken out?

“A. The one on the left.

“Q. There is also another — the air conditioner is right here ?

“A. That’s right.” (Emphasis ours).

This court in Bates v. State, 52 Ala.App. 257, 291 So.2d 351, reasoned:

“The jury may reasonably infer intent to steal from the presence of the accused in the store under circumstances showing a breaking and entering.”

Applying this same rationale to the facts in the present case and noting that appellant was caught inside, it is my judgment a jury could infer from the totality of the evidence that the office of Winningham Auto Sales contained things of value.

I respectfully dissent.