Reeder v. State ( 1977 )

BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent, was indicted for burglary in the second degree, breaking in a laundromat. On arraignment he entered a plea of not guilty. A jury convicted him and he was sentenced to two years imprisonment.

It appears in the record that the State’s attorney asked the prosecuting witness, Mr. Brown, manager of the burglarized premises for eleven years, the question which follows:

“Q Have you had a problem with brea-kins (sic) within the last year or two years?

“An objection is noted by the defendant with no grounds stated therefor.”

Thereupon, the Court instructed the jury:

“THE COURT TO THE JURY:

“Ladies and gentlemen, we will allow him to answer the question. I presume from the opening statement, the question was asked for the purpose of showing why Mr. Brown happened to be there on that occasion, but the fact that Mr. Brown had had other breakins (sic) in the past is not a circumstance for you to consider against this defendant at all and it has nothing to do with his guilt or innocence. It is introduced in evidence for the sole purpose of showing why he was there on that occasion. Go ahead Mr. Brown and answer the question.

“A Well, I have been (sic) had several breakins (sic) for the last three years. It was just like walking out every other night, every other night, every nother (sic) night.”

Later the witness, Mr. Brown, testified without objection, that:

“. . .1 went home and layed (sic) down until I recon (sic) about 1:30 I imagine. I didn’t go to sleep, I just layed (sic) down. My mind told me to get up.

I got up and left my car at home and went by my friend’s and picked up his truck. I got my gun and put it in the truck and pulled the truck around behind the building just enough that I could see around the corner of the filling station.

We think the question and answer about the prior burglaries of the business were permissible in explaining why the witness was near the premises when the instant burglary occurred. The ruling was free of error in light of the Court’s above quoted admonition to the jury.

We find no error in the record. Appellant’s counsel does not assert any other error.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.