Harris v. State

On Rehearing

CATES, Judge.

At appellant’s request we set forth the indictment (omitting the caption, district attorney’s signature, the foreman’s and circuit clerk’s endorsements):

“The Grand Jury of said County charge that, before the finding of this indictment, McArthur Harris, whose name is to the Grand Jury otherwise unknown, feloniously took one twenty dollar bill in currency of the United States, five *454five dollar bills in currency of the United States, forty-five one dollar bills in currency of the United States, all of the aggregate value of ninety dollars, the property of Gerald Bennett, from his person, and against his will by violence to his person or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

True, as Harris points out in brief, “no one testified to seeing Defendant take any money and * * * Gerald Bennett could not see the cash register while in the cooler.”

However, Bennett clearly testified that defendant ordered him to get in the cooler. The only other person who had an opportunity to take money from the cash register was “a little boy that came in the door.”

Even this possibility (of the boy’s taking the money) we view as remote. It is reasonably inferable from the evidence that Bennett came out of the cooler as soon as the boy came in the store. Thus, though Bennett was unable to see the cash register while in the cooler, since Harris had pulled a gun on Bennett and ordered him to get to the back away from the cash register, the jury was entitled to find that Harris wanted money from the cash register.

Further, we excerpt from Bennett’s direct examination:

“Q Now, with particular to any money, what money, had there been some money in the cash register?
“A Yes sir.
“Q How did you find your cash register?.
“A Well, I left it open when I went to the back.
“Q When you came back how did you find it?
“A When I - came back there was only from what I could notice a few pennies and just scattered small change.
“Q Could you determine how much money was taken in, particular denominations, to the best of your ability?
“A Well, I know of some certain money that was in the drawer. A roll of dimes, two rolls of pennies, that I had put in there, well, within 15 minutes before.
“Q What about any bills?
“A There was some one dollar bills and I am sure there was some five dollar bills in there and as far as larger bills I really wouldn’t know.
“Q What about one twenty dollar bill. Do you know whether or not it could have been one in there?
“A Well, it probably could have been. I don’t know about that.
“Q Now, how much was left in your cash drawer?
“A Well, now, the Manager checked. Mr. Childree checked the register but I know there was 175 left in the drawer.
“Q You were present there when the counting was made?
“A There was — the way the report is made he had to check it out himself.
“Q Prior to your having been held up you testified that you just testified as to what amounts of coins or currency was in the cash register?
“A yes sir.
“Q You are sure that is correct?
“A Yes sir.”

This we consider to show that “something of value” was taken from Bennett’s cash register.

In brief on application for rehearing, appellant states in part:

“Appellant submits that, withoiit Childree’s testimony as to inventory, there is no clear testimony that any money was taken. Your Honors noted in your opin*455ion herein on 5 March ‘the testimony of Bennett that “certain money” had been in the till, coupled with the circumstance of there being a trifling amount after-wards, made out a prima facie proof a value being taken.’ We disagree. The technical question, however, is only part of the matter. This was a jury case and it is altogether probable that a jury may not have been convinced ‘beyond a reasonable doubt and to a moral certainty’ on the shaky testimony capsuled above that any money was actually asported. A substantial, justified, and saving doubt may well have arisen in the mind of one or more jurors as to an actual taking. But once the Court erroneously allowed Childree to state that he checked out the till and found One Hundred Nineteen Dollars missing, no juror, receiving as he must the evidence allowed in by the Court, was likely to doubt an asportation.”

At the conclusion of the defense’s cross-examination of Childree, we note the following :

“Q When you state that $119.00 or something was short that is based entirely upon an assumption that there was a correct tape in the machine?
“A Yes sir.
“Q A tape which you had not run since 3 o’clock ?
“A That is true.
“Q A tape upon which there had been other transactions when you left?
“A Yes sir.
“Q So if the tape was in error, which is something you wouldn’t know, then, you wouldn’t know, then, you would be wrong about how much was short wouldn’t you ? If the tape was wrong your statement would be wrong?
“A Well—
"Q Answer my question. Isn’t that correct ?
“A Yes sir.
“Q That was my question?
“A Previous times it being right before and since. I will put it like that.
“Q That has nothing to do with this case. I am not accusing you or anybody else of keeping a false tape, understand that?
“A That is right.
“Q But I do say that your entire testimony as to how much money was taken is based upon an assumption of correct tape which is something you don’t know. Isn’t that correct?
“A All I can go by—
“Q No sir, answer my question.
“A All I can go by is what that machine shows.
“Q Let me state it again so your testimony as to how much money was taken, if any, is based entirely upon an assumption that there was a correct tape in the machine which is something you don’t know. Isn’t that true?
“A That is true.
“Q Yes sir, that is true.
“MR. SIMPSON: Your Honor, the defendant moves Your Plonor to exclude all of the testimony of the witness Childree, as to how much, if any, money was short in the machine.
“MR. REEVES: Your Honor, I think he can testify which I am just going to ask him, give him a chance before you rule as to how much money he left in the cash register at 3 o’clock when he went off duty and then what he found in the cash register when he made an inventory at approximately 6:10 that night.
“MR. SIMPSON: Your Honor, my friend the District Attorney has already brought out those points and the defendant’s point is that the testimony of this witness that the money or any money *456being short on that cash register is based entirely upon the assumption of the correctness of a tape which he himself has testified he doesn’t know and we move Your Honor to exclude his testimony to strike it from the record and instruct the jury that they cannot consider that.
“COURT: I am going to let his testimony stay in which gives the amount that he left there and the amount that he found on his return, then, I am going to leave in the tapes. Now, the jury can consider those tapes in the light of your very thorough cross examination. I am going to leave that part in and you have an exception to my ruling.
“MR. SIMPSON: Your Honor has confused me. I don’t exactly understand what is in.
“COURT: I am not going to let him draw the conclusion that a certain amount of money was stolen because your cross examination shows that he really doesn’t know that. I will let Ms testimony stay in as to the amount he knows he left there, the amount he knows he found there and then as evidence of the amount for a jury to consider or not consider I will leave in his testimony showing the tape reading at the time he left and at the time he returned.
“MR. SIMPSON: The defendant will object to Your Honor’s ruling as to how much money Mr. Childree left at 3 o’clock, as to how much money he found some hours later when he inventoried the store and Your Honor’s allowing in the tapes which were not run by this witness and as to whom, nobody has verified.
“COURT: I thought this witness said he did the tapes and he ran them.
“MR. SIMPSON: • I am talking about tapes that were punched or put on the machine when he wasn’t there.
“COURT: I am going to let that in.” (Italics added.)

We conclude that the trial judge’s ruling was correct. The cash register tapes are records of cash transactions within the meaning of the Business Record Act. Code 1940, T. 7, § 415.7

Hall v. Dexter Gas Co., 277 Ala. 360, 170 So.2d 796, involved personal injury from escaping propane gas. In the opinion we find:

“The defendants introduced into evidence a so-called tachograph disc record or chart. The testimony does not clearly disclose what a tachograph is or exactly how it works. As we understand the testimony of Howard K. Gardner, the vice-president and general manager of Dexter Gas Company, a tachograph is similar to a clock. It is put in a truck in place of a speedometer. It runs continuously. A disc or chart is placed in or connected with the tachograph instrument so that it ‘tells the time that the truck started and the number of miles he goes and the stops that he makes and what he is doing at the stop and how long he stays in that place and when he starts up on the next run and the speed which he operates during the day and when he comes in the total miles for the day and the number of stops he made and so , forth.’ According to Gardner the tachograph chart enables him to know exactly what his truck driver or service man is *457doing ‘minute by minute during the day.’ “The objection interposed to the introduction of the tachograph disc record or chart was that, ‘It is not properly verified or authenticated.’ We do not think that objection well taken. Gardner testified that the record or chart was kept in the ordinary course of his business as a part of the general records under his supervision. In view of Gardner’s testimony, the introduction in evidence of the tachograph record or chart was not subject to the objection interposed.— § 415, Title 7, Code 1940.”

Since § 415, supra, allows discrepancies to be confined generally to the weight rather than going to admissibility of business records, we hold the quoted direction by the trial judge in the hearing of the jury conformed to the statute.

As to other claims of error, we believe the opinion on original deliverance suffices to cover what we consider to be the aplicable law.

Application overruled.

. “§ 415. Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof of said act, transaction, or event, if it was made in the regular course of any business, and it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term, 'business’ shall include business, profession, occupation, and calling of every kind.”