author: HARRIS, Judge.

text:
    Kenneth Ray LEE v. STATE.
    7 Div. 527.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied May 3, 1977.

      No Brief for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State;
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to ten years in the penitentiary. At arraignment and trial appellant was represented by court-appointed counsel. He pleaded not guilty. After sentence was imposed, appellant gave notice of appeal. He was furnished a free transcript and trial counsel was appointed to represent him on appeal. Appellant’s counsel did not see fit to file a brief on appeal.

The evidence in this case is in sharp conflict. The evidence presented by the State shows an aggravated case of robbery was perpetuated upon the victim. Appellant and a co-indictee testified that no robbery was committed at all.

The Attorney General through his able Assistant Attorney General, Mr. Ward, has summarized the evidence in this case in his usual and expert manner and we here adopt the statement of facts set forth in his excellent brief.

The first witness for the State, the victim of the robbery, stated that he saw the appellant at the Lakeside Lounge in Bromp-ton, Alabama, around 9:00 at night on May 8,1976. The witness stated that Brompton, Alabama, was in St. Clair County, Alabama.

The witness stated that the appellant, along with a boy and a girl later identified to him as Charles Ray Owens and Marilyn Myrick, were already at the Lakeside Lounge when he arrived. He stated that the appellant asked him if he would give him a ride home to Prescott, Alabama. The witness stated that he told the appellant he would take him home. The witness continued by stating that after about 45 minutes he left the Lounge with the appellant, Charles Ray Owens, and Lois Myrick. He stated that they left the Lounge in his 1973 Chevrolet Monte Carlo with him driving. He stated that the appellant was in the front seat while Charles Ray Owens and Lois Myrick were in the back seat. He stated that his purpose in taking them in his car was to give them a ride to Prescott, Alabama.

The witness stated that while traveling towards Prescott, Alabama, his passengers told him to turn on Winnataska Road. He stated that he turned on this road and stopped. The witness stated that when he stopped he was beaten up and after he was beaten up, the passengers, with the appellant driving, drove him to Brashier Hill to Charles Ray Owens’ mother’s house. He stated that they got him out of the car and took him into Owens’ mother’s home. He stated while there Owens and his mother got into an argument and while they were arguing he ran away and went up to a neighbor’s house and called the police. The witness said that Winnataska Road is in the southern division of St. Clair County.

In a little more detail, the witness stated that when he stopped the car on the Winna-taska Road the Owens boy grabbed him from behind and then the appellant started hitting him. He stated that when they left Winnataska Road and drove to Brashier Hill the appellant was driving the car. He stated the appellant drove the car a little further down Winnataska Road and they stopped again. He stated they asked him how much money he had and he told them he did not have any money. He stated they responded by telling him that he was lying and they kept on beating him.

The witness stated that he did not have any money but that he had a checkbook and a billfold with him. He stated that when he took out his billfold to show them that he didn’t have any money the Owens boy took it. He stated he also had a check for $20.00 which the Owens boy also took.

The witness stated that the value of the 1973 Chevrolet Monte Carlo was $3700.00. He stated the check was for $20.00. He finally stated that the aggregate or total value of the items taken from him was $3730.00.

The witness continued by stating that after they stopped and took his billfold and the $20.00 check on the Winnataska Road, they put a shirt on his head and drove him to Brashier Hill. The witness stated that when they got to Brashier Hill they took him out of the car and carried him inside of the house. He stated that he knew it was Brashier Hill because he had been there before.

He stated that he stayed inside the house for a few minutes and then ran and called the police. He stated that the house he ran from was Charles Ray Owens’ mother’s house. He stated that he ran to the next house up the road which was owned by Mamie Brashier. The witness stated that Mamie Brashier was there at the time and that she is the one who called the police for him. He stated she called Leeds Police Department who responded to the call by coming over to Mamie Brashier’s house and talking with him.

Additionally, the witness stated that after Mamie Brashier called the Leeds Police Department, he called them back to give them a description of his car. He stated that an Officer Harding from the Leeds Police Department came to Mamie Brash-ier’s house. He stated Officer Harding carried him to the Emergency Room at Leeds Clinic.

The witness stated the next time he saw the appellant was in the Leeds Jail the following Monday. The witness stated that the appellant was one of the people striking him on the Winnataska Road when they stopped the car. He stated that Owens was also hitting and striking him.

On cross-examination, Mr. McKelvey stated that he drank two or three beers while he was at the Lakeside Lounge. He also stated that the appellant, Owens, and the Myrick girl were drinking beer and whiskey; however, they did not seem like they were drunk.

Mr. McKelvey stated that the reason he initially stopped on the Winnataska Road was because the appellant and his friend stated that that is where they lived. He stated that he stopped the car in front of a house and after that they started beating him. The witness stated that the appellant and his friends did not have any weapons, that they just hit him with their hands. The witness stated that after being hit by the appellant and his friend he was bleeding.

He stated that both the appellant and Charles Ray Owens asked him if he had any money. He stated that the girl, Mrs. My-rick, did not ask him whether he had any money and did not participate in hitting him. The witness stated that when they took him to Charles Ray Owens’ mother’s house they forced him inside by walking on each side of him and holding his arms.

The witness stated that the $20.00 check was signed by him in the car. He stated that the appellant and his friends forced him to write the check when they discovered he had no money. The witness stated that he gave the check to Charles Ray Owens.

The witness continued by stating that when he ran from Owens’ mother’s house to the Brashier home that the appellant chased him.

On redirect examination, the witness stated that the appellant chased him all the way from Owens’ mother’s house to the Brashier home. The witness stated that when he got near the Brashier home the appellant turned around and went back. Finally, the witness stated that he got his automobile back the following morning from the Leeds Police Department, that being a Sunday morning.

On recross-examination, the witness stated that the appellant chased him up to the Brashier home; that the appellant grabbed him at the Brashier home; and that after he grabbed him he let go and left.

James Harding testified that he was employed by the Leeds Police Department and was working in such capacity on May 8, 1976. He stated on that day he was working the three to eleven shift, that being the evening shift.

Officer Harding stated that on the evening of May 8, 1976, the Leeds Police Department received a call from Mrs. Brashier. He stated that the dispatcher told him that Mrs. Brashier called and said someone was outside her house yelling “Help. Help.” Officer Harding said that this call was received at five minutes after ten the night of May 8, 1976. He stated that after receiving the call he went to the Brashier home which is located in the southern division of St. Clair County.

Officer Harding stated that when he got to the Brashier home he saw Mr. McKelvey. Officer Harding stated that it appeared that Mr. McKelvey had been beaten about the head and that he was bloody. According to Officer Harding, Mr. McKelvey told him that he had picked up some people on the side of the road and they had beaten him up and taken his ear and money and left.

Officer Harding stated that he then transported Mr. McKelvey to the Leeds Emergency Room. He stated that when Mr. McKelvey made the complaint to him about the robbery he did not mention the appellant, Kenneth Ray Lee, by name, but rather used the nickname of Jap. Officer Harding stated that he knew the appellant by the nickname of Jap.

Further, Officer Harding stated that when Mr. McKelvey made the complaint to him about the robbery he also mentioned Charles Ray Owens and a woman.

Officer Harding stated that he saw the appellant, Owens, and the woman later that night at the Leeds Jail.

Additionally, Officer Harding stated that when he was en route to the Brashier home from the Leeds Police Department he received another call from the dispatcher saying that Mr. McKelvey had called to report that his car had been taken and had given a description of that car. Officer Harding stated that when he arrived at the Brashier home and talked with Mr. McKelvey, Mr. McKelvey verified that his car had been taken and also that his wallet and a check had been taken from him.

On cross-examination, Officer Harding stated that when he first saw Mr. McKelvey his eye was swollen and he was bleeding from his mouth and nose and he also had some small cuts on his face. Officer Harding stated that when he observed Mr. McKelvey at the Brashier home he was groggy. He explained this to mean that Mr. McKelvey was weaving on his feet; that he was standing up but that he was not standing steadily.

Richard Lee Smith testified that he was a patrolman with the Leeds Police Department and he was serving in such capacity on May 8,1976. He stated he was patroling with another officer, that being Officer Spradly, around 10:00 at night. He stated that around that time he received a stolen car report from Leeds Police Department radio dispatcher and from Officer Harding.

Patrolman Smith stated that the car stolen allegedly belonged to R. A. McKelvey, Jr. Patrolman Smith stated that he saw the stolen automobile belonging to R. A. McKelvey around ten minutes after ten on May 8, 1976, at the Raceway Service Station, that station being located on Highway 411 and 25 in Leeds, Alabama. Patrolman Smith said that the appellant, Kenneth Ray Lee, was driving the car when he saw it at the Raceway Service Station. Patrolman Smith identified appellant as the one driving this automobile by pointing to him m the courtroom.

Patrolman Smith stated that Charles Ray Owens and Marilyn D. Dunnaway were also with the appellant when he saw the stolen automobile of R. A. McKelvey, Jr. He stated when he first saw the car it was stopped in front of the rest rooms at the service station; that Mrs. Dunnaway was getting out of the car and going into the ladies rest room; that the appellant was sitting under the steering wheel of the car and Owens was sitting on the passenger’s side next to the window. Patrolman Smith stated that when he saw them he arrested them.

Patrolman Smith stated that he had a description of the car the appellant and his friends were in. He stated the car was a 1973 Monte Carlo with a black vinyl top and a silver bottom. He stated that this automobile was later identified by Mr. McKelvey as being his car.

Additionally, Patrolman Smith stated that when he arrested appellant and his friends they found the billfold of Mr. McKelvey in the possession of Charles Ray Owens, it being in his hip pocket. Further, he stated that they found the check written out for $20.00 cash in the purse of Marilyn Dunnaway.

On cross-examination, Patrolman Smith stated that Mrs. Dunnaway also goes by the name of Marilyn Myrick. Patrolman Smith stated he had a conversation at the Raceway Station with the appellant after he read him his rights. He stated the appellant told him that he did not steal the car. Also, Patrolman Smith stated that Charles Ray Owens said that he did not steal the car and that Mrs. Dunnaway refused to make a statement at all.

Lois Myrick testified that her name was Lois Myrick, but that she was also known as Dunnaway. She stated that Dunnaway was her maiden name. She stated that she knew the appellant and that she knew him by the name of Jap. She stated that Jap was his nickname and that his real name was Kenneth Ray Lee. The witness stated that she was presently under indictment and charged with some crime. She stated that she was testifying in this case with the knowledge of her attorney.

The witness stated that she knew Charles Ray Owens and that on the night of May 8, 1976 she was at the Lakeside Lounge in Brompton, Alabama with Owens and the appellant, Kenneth Ray Lee. She stated that they arrived at the Lakeside Lounge around 5:00 for the purpose of doing some drinking and shooting pool. She stated they stayed there until about 10:00 or 10:30.

The witness stated that she had seen the victim of the robbery, Mr. McKelvey, the night of May 8, 1976 at the- Lakeside Lounge. She stated that Mr. McKelvey came in the Lounge some time after she, the appellant and Owens had arrived. She stated that they got to the Lakeside Lounge in Charles Ray Owens’ car but that it “tore up” on the way. She stated that by the time they arrived at the Lakeside Lounge the car was not in working order. She stated that she saw both the appellant and Charles Ray Owens talk to Mr. McKelvey that evening at the Lakeside Lounge. She stated that she did not hear what they said to him but that Charles Ray Owens told her to come on, Mr. McKelvey was going to carry them home. She stated that she went and got into the car with them and she was told, “Come on. He’s going to carry us home.”

She stated that when they got into the car the appellant got into the front seat and she and Owens got in the back seat. She stated they left Lakeside and headed towards Prescott, Alabama. She stated as they got somewhere near the vicinity of Prescott the appellant and Charles Ray Owens told Mr. McKelvey to stop, that they had a gun and that they wanted his money. The witness stated that although they told Mr. McKelvey that they had a gun, they really did not have one.

The witness stated that this took place on the Winnataska Road in St. Clair County, Alabama. The witness stated that when they stopped the appellant got under the steering wheel and put Mr. McKelvey in the. middle in the front seat. She stated that Charles Ray Owens then got in the front seat on the passenger’s side. She stated that after the appellant and Charles Ray assumed these positions they began hitting Mr. McKelvey and asking him for his money. She stated that they told him they wanted whatever money he had.

She stated that Mr. McKelvey told them he didn’t have any money. She stated that the appellant and Owens took a billfold from Mr. McKelvey and also made him write out a check for $20.00. She stated that he wrote the check out to cash. She stated that he handed the check to Charles Ray who eventually gave it to her.

After McKelvey gave them the check, they drove around a little bit more. She stated that they again stopped and they began to hit Mr. McKelvey some more. She stated that after stopping and hitting him some more, they started to Leeds to cash the check and went to a Quik Mart for this purpose. She stated she went inside to cash the check but the people at the Quik Mart refused to cash it.

After attempting to cash the check, they then went to Charles Ray Owens’ parents’ home. She stated that when they got to the Owens home, Charles Ray told her to stay in the car. She stated that she got on the outside of the car to wait and eventually she heard someone hollering and then not too long after that she saw someone take off running.

Mrs. Myrick stated that on the way up to the Owens home the appellant and Charles Ray Owens put a shirt over Mr. McKelvey’s head. She stated that it was Mr. McKel-vey’s shirt that they put on over his head. The witness stated that when McKelvey ran out of the Owens house hollering for help he ran in the direction of Mamie Brashier’s home. She stated that the appellant was chasing him as he ran towards Mamie Bra-shier’s. She stated the appellant chased him almost all the way to Mamie Brashier’s house and then turned around and came back. She stated that when he came back he told them “he had lost him.”

She stated that after a few minutes they left the Owens home and stopped at a Raceway Service Station so that she could use the bathroom and the phone. She stated the Raceway Station was coming out of Leeds going towards the freeway. She stated that while they were stopped at the Raceway Station the Leeds police came and arrested them all and carried them to jail. Miss Myrick stated that when they got to the Police Station the police recovered the billfold out of Charles Ray Owens back pocket and the check out of her purse.

She stated that the car they were arrested in was the same automobile that they were in when they left the Lakeside Lounge. She described the car as a gray looking Monte Carlo.

Mrs. Myrick stated that when Mr. McKel-vey ran from the Owens home his face was all messed up and beat up pretty bad. She stated he was bleeding. Also, she stated that he was hollering for help, and, “for them to quit and leave him alone.”

On cross-examination, the witness stated that Charles Ray Owens and the appellant were pretty drunk when they left the Lakeside Lounge. However, she stated that Mr. McKelvey was not drunk. Further, she stated that she also was not drunk.

The witness was very insistent that the District Attorney had not promised her anything in return for her testimony in the instant case. The witness continued by stating that both the appellant and Charles Ray Owens told her that they were going to take the car somewhere and try to sell it. Further, the witness stated that Mr. Owens did not wrestle or forcibly take the billfold from Mr. McKelvey. Rather, she stated that Mr. McKelvey handed it to him.

On redirect examination, the witness stated that she did not talk to the District Attorney before he started examining her on the witness stand during the trial.

At this point, the State rested its case subject to calling rebuttal witnesses.

Also at this point, the appellant moved to have the Court dismiss the charges against him. This motion was overruled and denied by the St. Clair County Circuit Court.

Charles Ray Owens testified on behalf of the appellant. Mr. Owens began by testifying that he lived on Brashier Hill in Leeds, Alabama. Owens stated that he knew Mr. McKelvey prior to the robbery on May 8, 1976. He stated that prior to this time Mr. McKelvey had come up to his house and they at times had dated sisters.

Owens stated that he had been living with Lois Myrick for approximately three or four months prior to the robbery on May 8, 1976. He stated he was not married to her but was presently married to someone else.

Owens stated that on the afternoon of May 8, 1976 he and Lois Myrick went to his uncle’s house where the appellant was staying. Owens stated that after picking up the appellant they went to the Lakeside Lounge arriving there at around 5:00 in the afternoon. He stated that as he was pulling in at the Lakeside Lounge he had car trouble serious enough to make it impossible for him to drive the automobile anymore.

Owens continued by stating he saw Mr. McKelvey at the Lakeside Lounge around 8:00 or 9:00 that same night. He stated he asked Mr. McKelvey if he would take them to their home up on Brashier Hill. According to Owens, McKelvey told them that he would take them up there after he finished drinking the beer he was drinking.

Some fifteen to twenty minutes later, Mr. McKelvey, Owens, the appellant and Lois Myrick left Lakeside Lounge in Mr. McKelvey’s automobile. According to Owens, McKelvey was driving, the appellant was in the front seat, and he and Lois Myrick were in the back seat. Owens stated that after leaving Lakeside Lounge they went first to the Raceway Service Station in Leeds to purchase some beer. Owens stated that while driving from the Lakeside Lounge to the Raceway Service Station, the four of them just carried on a conversation and talked. He stated that there was no discussion up to that time about any money.

He stated that they purchased a six pack of beer at the Raceway Service Station and then proceeded to his house on Brashier Hill. He stated he did not own this house on Brashier Hill but that he was renting the same. He stated that while they were driving from the Raceway Station to Bra-shier Hill he and McKelvey got into an argument. According to Owens, McKelvey asked Lois if she would go off with him. In response to this, Owens told him “to leave his girl friend alone.”

After arriving at Brashier Hill, the four of them went inside and drank a beer. Owens stated he momentarily left to go to the bathroom and when he returned he heard a conversation between McKelvey and Lois. According to Owens, Lois was telling McKelvey to leave her alone. Owens stated that when he walked in the room McKelvey just kept messing with Lois so he told him to leave her alone. According to Owens, McKelvey then asked him what business he had to do with her and Owens told him. After that conversation, a fight started.

Owens stated that he and McKelvey went outside to have the fight. Owens stated that before they started the fight both of them pulled their shirts off. He stated that they fought for a while and then McKelvey took off and ran down the road behind Owens house out another road towards another house. Owens stated that after McKelvey ran Owens picked up his shirt, put it in the house and then the three of them got into the car and went over to the Raceway Station to get some more beer.

Owens stated that once they got to the Raceway Station they were arrested. Owens stated he did not know anything about any twenty dollar check. Also, Owens stated that he was pretty full but not intoxicated.

Owens stated that when they stopped at the Raceway they were only going to get a six pack of beer and then return to his house. He stated that when he got out of the car to go inside the Raceway Station to get the beer the police officers pulled up and arrested him.

Kenneth Ray Lee, the appellant in this case, began his testimony by stating that on May 8, 1976, he went to the Lakeside Lounge with Charles Ray Owens and Lois Myrick. He stated that on the way to the Lounge Owens’ car developed car trouble. However, he stated they were still able to make it to the Lounge.

The appellant stated that later that night at the Lakeside Lounge he saw Mr. McKel-vey. He stated he had never seen Mr. McKelvey before this time and did not know him. He stated he was never introduced to him but only later found out his name. The appellant stated that he had a nickname and that nickmane was Jap.

According to the appellant, Mr. McKel-vey, the appellant, Charles Ray Owens, and Lois Myrick left the Lakeside Lounge around 9:00. He stated that Mr. MóKelvey was going to take them to Charles Ray Owens’ house on Brashier Hill. Appellant stated that the first stop after leaving the Lounge was the Raceway Station in Leeds, Alabama. He stated the purpose of stopping there was to buy some beer. He stated that he got out of the car and purchased the beer. After buying the beer, the appellant stated they went up to Charles Ray Owens’ house on Brashier Hill. The appellant stated that while driving from the Raceway Station to Brashier Hill, Owens and Mr. McKelvey got into an argument over Lois Myrick. According to appellant, McKelvey asked Lois to go off with him and Charles Ray Owens told McKelvey to leave her alone.

The appellant stated that after arriving at Owens’ home on Brashier Hill they all drank a beer. The appellant stated that while Owens went to use the bathroom, McKelvey and Lois began to talk. When Owens returned, he and McKelvey got into an argument and began fighting. The appellant stated they went outside and started this fight.

According to appellant, Owens and McKelvey fought for a little while and then McKelvey broke loose and started running. Appellant stated that he did not chase him. He stated he was just there with Lois watching the fight. Appellant stated he did not participate in the fight, that on the night of May 8,1976 he never put his hands on nor did he strike McKelvey; that he never that night went on the Winnataska Road; that on that night he never robbed Mr. McKelvey of a twenty dollar check; that on that night he never robbed Mr. McKelvey of a billfold; and on that night he never robbed Mr. McKelvey of his automobile.

On cross-examination, the appellant admitted that he had previously been convicted of a felony.

At this point the defense rested its case.

Lois Myrick stated on State’s rebuttal that on the night of May 8,1976 when they left the Lakeside Lounge they went to Prescott and not directly to Brashier Hill. Further, she stated that at no time during the course of their trip did Mr. McKelvey ever make any suggestions of any nature to her of dating him, or going with him or having sex with him.

Additionally, she stated she did not see Charles Ray Owens and Mr. McKelvey strip down to the waist and have a fight out in the yard. Lois stated that on the night of May 8, 1976, she did not go inside the Owens house on Brashier Hill and that McKelvey never made any kind of proposition to her inside that house.

The essential elements of the crime of robbery are: (1) felonious intent, (2) force, or putting in fear as a means of effecting the intent, and (3) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. Cobern v. State, 273 Ala. 547, 142 So.2d 869; Tarver v. State, 53 Ala.App. 661, 303 So.2d 161; Johnson v. State, 57 Ala.App. 470, 329 So.2d 160.

Conflicting evidence in a robbery prosecution as to whether appellant committed the robbery presented an issue for the jury to resolve. Williams v. State, 26 Ala.App. 555, 163 So. 463; Cowart v. State, 22 Ala.App. 300, 115 So. 145; Lewis v. State, 55 Ala.App. 131, 313 So.2d 558; Mitchell v. State, 52 Ala.App. 174, 290 So.2d 241; Taylor v. State, 55 Ala.App. 184, 314 So.2d 104.

It is immaterial who takes the property where several persons participate in a robbery. Johnson v. State, supra; Murphy v. State, 52 Ala.App. 490, 294 So.2d 457; Gibson v. State, 49 Ala.App. 18, 268 So.2d 49.

In Stokley v. State, 254 Ala. 534, 49 So.2d 284, the Supreme Court held:

“When by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act.”

In reviewing the denial of a motion for a new trial, this Court will indulge every presumption in favor of the correctness of the ruling of the trial court. Clark v. State, 54 Ala.App. 217, 307 So.2d 28; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624.

This case points up the plight of a modern day Samaritan who was trying to do a good deed and fell into the hands of thieves and robbers. After leaving the Lounge in his car with appellant and two others, McKelvey was forced to stop his car on a dark road in St. Clair County. There he was beaten by both appellant and Owens. His billfold was taken and he was forced to write a check for twenty dollars made out to cash. After being beaten and robbed he was carried inside a house occupied by one of his assailants with his shirt pulled over his head. He managed to escape and ran to a neighbor’s house for help with appellant in hot pursuit. The police were called and immediately responded. The police officer described the victim as bloody and badly beat up and the officer carried him to the emergency room of a hospital in Leeds, Alabama. Shortly thereafter the victim’s car was recovered in the possession of appellant and his companions at a service station. Appellant was in the driver’s seat. They were then and there arrested and each was given the Miranda rights and warnings.

The evidence presented at trial was more than sufficient to support the judgment of conviction, and this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Presiding Judge.

license: Public Domain

text:
    Larry CALHOUN, alias v. STATE.
    3 Div. 744.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.

      Frank W. Riggs and Von G. Memory, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged Larry Calhoun with the robbery of $450.00, “the property of Mary Calloway, from her person, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same.” The jury found the appellant guilty of robbery and fixed punishment at ten years imprisonment. The trial court then entered judgment which set sentence in accordance with this verdict.

Mrs. Mary Calloway testified that she was employed at Ideal Sales rental office in the Cloverland area of Montgomery, Alabama, and was on duty in the office on .the morning of January 9, 1975. She stated that between 10:00 and 10:30 that morning, two black males entered the office and stopped at the counter. They asked if there was an available apartment and if they could see it. Mrs. Calloway explained there was and also there was a company policy to require a $5.00 key deposit when someone takes a key to look at an apartment. Mrs. Calloway stated that one of the men was several inches taller than the other, that she asked for a name and was given the name of John Jones. She stated that she was writing out a receipt for $5.00 when one of the men, who she identified as the appellant, pulled a pistol,- silver in color, from his pocket and pointed it at her, then stated, “We don’t want to hurt you, but where is the money?” (R. p. 24) Mrs. Calloway indicated that the appellant then handed the pistol to his companion, came around the counter where she was standing, reached into the cash drawer, and took the cash, leaving only checks and coins. She stated that about this time two of the maintenance men who worked for Ideal Sales, one Johnny Smith, a black, and L. D. Brooks, a white, walked into the company office. She stated that as they came in, the appellant and his companion said to her, “We have got the key to Apartment 407C,” and “Can we get our $5.00 back when we come back,” then turned and left. Mrs. Calloway stated that shortly after the men left, she fainted, and upon being revived, she counted the amount of cash which she had placed in the drawer and compared it with her ledger books, then determined the $450.00 in currency was taken.

Mrs. Calloway also testified that she saw several lineups at police headquarters in Montgomery during January and February, 1975, and that on either the fourth or fifth lineup, she positively identified the appellant, Larry Calhoun. She also made a positive in-eourt identification of the appellant.

Montgomery Police Detective Cody Wood testified that he participated in the investigation of the robbery of Ideal Sales on January 9, 1975. He testified that Mrs. Calloway participated in five lineups at police headquarters, and that on February 17, 1975, without any suggestions or prompting whatever on his part, she selected the appellant, Larry Calhoun, who was in position No. 3 of a five-man lineup. He testified that all participants were black males between the ages of twenty-three and twenty-six, between the heights of five feet six inches and six feet three inches, and between 150 and 170 pounds in weight. He testified that all had on similar blue jeans and sport shirts and that he made a photograph of the lineup from which the appellant was selected.

On cross-examination Detective Wood stated that Mrs. Calloway also identified one Gregory Anthony at a different lineup as being the other participant (R. p. 44).

Mrs. Calloway, upon being recalled to the stand, testified that she did select a second individual from a different lineup as being the other participant in the robbery.

Johnny Smith testified that he had been a maintenance employee for seventeen years with Ideal Sales, which handled apartments in the Cloverland area of Montgomery. He testified that he looked after routine maintenance in the apartments. He testified that on the morning of January 9, 1975, he walked into the company office around 10:30, and there were two men in the office talking with Mrs. Calloway. He said that one of the men said to her, “Will I get my $5.00 back when I bring back the key,” and then turned and walked out as she said, “Yes.” He made a positive identification of the appellant as being one of the two men who was present that morning. He stated that Mrs. Calloway had him lock the door after they left and that she called Mrs. Hixon, who was the manager and was upstairs. Johnny Smith testified that he viewed three or four lineups, and that he picked out the appellant from a lineup in which there were six black males. He stated that the appellant was in position No. 1. He testified that Police Detective Cody Wood asked him to come down to police headquarters and that this was in February, 1975. He testified that only Detective Wood was present, and that Detective Wood gave him no information before viewing the lineup. Upon being shown a photograph of the lineup, Johnny Smith identified the appellant as being in position No. 1, and that there were six in the photograph. He made a positive in-court identification of the appellant and stated that the appellant had been standing right beside him when he walked in the office that morning.

Montgomery Police Detective Cody R. Wood was recalled and testified that he arrested the appellant on February 19,1975, after he had been identified by Mrs. Calloway at a lineup on February 17, 1975, and by Johnny Smith on February 18, 1975.

The appellant’s attorneys made a motion to exclude the State’s evidence, which was overruled.

Larry Calhoun testified that he lived at 626 Story Street with his mother in Montgomery. He stated that he was twenty-three years of age and a student in his Junior Year at Alabama State University, that he played quarterback on the football team. He testified that he graduated from Carver High in Montgomery and had never been in any trouble prior to being charged with the January 9, 1975, robbery at Ideal Sales. He denied owning a pistol or ever having gone to the office of Ideal Sales, or of robbing Mrs. Calloway, or having any discussion with her pertaining to an apartment. He denied ever having seen Johnny Smith other than at a preliminary hearing.

On cross-examination the appellant admitted to a prior robbery conviction (R. p. 96). He admitted on cross-examination that one Gregory Anthony was an acquaintance of his, and that they had played football together. He denied discussing his case with Gregory Anthony and denied that Gregory Anthony was with him on January 9, 1975, at the Ideal Sales office. Calhoun testified that both the Kansas City Chiefs and the Dallas Cowboys had been to talk with him about football.

The appellant presented the testimony of John Fulgram, who coached the appellant at Carver High in Montgomery. Fulgram testified as to his good character. Appellant also presented the testimony of Robert E. James, Director of the Cleveland Avenue YMCA; and the testimony of Percy King, who was Superintendent of the City of Montgomery Recreation Department and had known the appellant since high school. Each of them testified that the appellant’s reputation for peace and quiet was good, and that they did not know of his being in any prior difficulty.

I

The appellant contends that the State failed to prove a prima facie case, and that the money was not shown to have been the property of Mrs. Calloway.

In Mays v. State (Ala.Cr.App.), 335 So.2d 246, we find the following:

“. . .To sustain a charge of robbery it is not necessary that the stolen property be in the actual physical contact with the person of the victim, but it is sufficient if the property is taken from his presence or personal protection. Cobern v. State, 273 Ala. 547, 142 So.2d 869. Moreover, in an indictment for robbery, ownership of the stolen property is properly laid in the party in possession, either as owner, or bailee, or agent. See Bray v. State, 47 Ala.App. 308, 253 So.2d 531, and authorities therein cited.
“It is not necessary that title be in the person robbed. Douglass v. State, 21 Ala.App. 289, 107 So. 791. Bowman v. State, 44 Ala.App. 331, 208 So.2d 241.”

In Tarver v. State, 53 Ala.App. 661, 303 So.2d 161, Judge Harris stated the following:

“The three essential elements of the crime of robbery are: (a) felonious intent, (b) force, or putting in fear' as a means of effecting the intent, and (c) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. Douglass v. State, 21 Ala.App. 289, 107 So. 791; Hardis v. State, 28 Ala.App. 524, 189 So. 216; Cobern v. State, 273 Ala. 547, 142 So.2d 869; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382.”

We are of the opinion the State here presented a prima facie case and the appellant’s motion to suppress and motion to exclude were properly overruled at trial. Clay v. State, 52 Ala.App. 272, 291 So.2d 364; Tarver v. State, supra.

II

The appellant contends that the State erroneously was allowed to ask about the appellant’s prior conviction of robbery on cross-examination because the time for appeal in the prior case had not expired at the time of trial in the instant case. The prior conviction took place on May 28,1975, and the trial in the instant cause took place on June 19 and 20, 1975. The prior conviction has been affirmed by this Court. Calhoun v. State, Ala.Cr.App., 343 So.2d 1 (1977).

We are of the opinion that the Deputy District Attorney properly was permitted to inquire about the appellant’s prior conviction. Title 7, Section 434, Code of Alabama 1940.

We also point out that the appellant in his direct testimony had made the statement that he had never been in trouble with the law before; hence, the State properly was permitted to impeach him in this cause (R. pp. 92-98).

III

Appellant here contends that the Deputy District Attorney was improperly permitted over objection to impeach the appellant on an immaterial matter. In brief, the appellant’s attorneys point out that Gregory Anthony did not testify during the appellant’s trial, nor was he present during any of the court proceedings. The appellant asserts that this questioning with reference to his acquaintanceship and football associations with Mr. Anthony was erroneous.

This argument overlooks the fact that Police Detective Wood stated that Anthony had been identified as the companion of the appellant at other police lineups; hence, we are of the opinion that the appellant was not impeached upon an immaterial matter.

We believe this line of inquiry to have been correct under the evidence in this cause, and such was therefore properly allowed to be argued to the jury. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666. In short, there was here no impeachment upon an immaterial matter in the case at bar.

We have carefully examined this record and find same to be free from error. The judgment is due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.

BOWEN, J., recuses self.


text:
    Willie B. COLLINS v. STATE.
    4 Div. 371.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Randy C. Brackin, Dothan, for appellant. William J. Baxley, Atty. Gen. and Michael L. Weathers, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent here and at nisi prius, with the same appointed counsel at both court levels, was indicted for leaving the scene of an accident without statutory observance. Convicted therefor and sentenced to three years imprisonment.

The indictment reads, omitting the formal parts:

“THE GRAND JURY OF SAID COUNTY CHARGE THAT, BEFORE THE FINDING OF THIS INDICTMENT Willie B. Collins, whose name is to the Grand jUry [sic] otherwise unknown, the driver of a motor vehicle; to-wit: an automobile being driven upon a public highway in Houston County, Alabama, involved in an accident resulting in injury to Kenneth Davis, wherein the said Kenneth Davis was bruised and was injured internally and received other bodily injuries, did fail to immediately stop such vehicle at the scene of such accident, and did fail to give his name and address and the registration license number of his vehicle, and did fail to render to Kenneth Davis, the person injured in such accident, such reasonable assistance, including the carrying of such injured person to a physician or surgeon for medical or surgical treatment, it being apparent that such treatment was necessary, as required by law in the State of Alabama, against the peace and dignity of the State of Alabama.”

The statute, T. 36 § 128, Subsection (1), Recompiled Code, 1958, reads as follows:

“Duties of driver of vehicle involved in accident resulting in personal injury or death or damage to vehicle. — 1. Duties of Driver. — The driver of any vehicle involved in an accident resulting in injury to or death of any person, or damage to a vehicle, shall immediately stop such vehicle at the scene of such accident, and shall also give his name and address, and the registration license number of his vehicle, and shall render to any person injured in such accident reasonable assistance, including the carrying of such injured person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary.”

As we observe, in the statute, there is no mandate that the accident must happen on a highway or even adjacent thereto. Neither does it require that the offending vehicle being driven must be an automobile.

In the instant case, the vehicle was an automobile that defendant was driving on Tuskegee Street, a public highway, and while so driving, the vehicle left the highway, and crossed a narrow private driveway and a grass plot, and hit the victim while he was sitting on a stoop or small porch of a building. The distance traveled from the road to the point of the accident was about thirty feet. The victim suffered from a broken leg, which was broken in two places, and had to be hospitalized for a period of several days.

It further appears that defendant, after cranking his motor twice before it started, left the scene without complying with the statutory mandate as alleged in the indictment but he later reported to police. The injured victim, with the assistance of some acquaintances, was taken to the hospital.

We further note that the incident does not allege that the impact occurred on the highway, but only alleges that “an automobile being driven upon a public highway,” and became involved in an accident, etc.

Immediately before the impact the automobile was being driven on a public highway, as alleged, and within thirty feet from the highway was involved in an accident resulting in the injuries as alleged.

We think the State offered evidence that supported the allegations of the indictment.

It is true that the defendant offered evidence that he suffered from seizures due to epilepsy and that he remembered nothing about the accident. The credibility of this evidence was for the jury and the trial court. We will not pass upon that facet of the defense.

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.


author: DeCARLO, Judge.

text:
    Arthur M. HUMPHRIES v. STATE.
    8 Div. 816.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    David L. Thomas, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen. for the State, ap-pellee.
   DeCARLO, Judge.

Manslaughter first degree; ten years. On October 17, 1975, the grand jury of Madison County indicted Arthur M. Hum-phries for first degree murder. The indictment alleged that the appellant:

“. . . unlawfully killed Joann E. Sloan, by perpetrating an act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life by, to-wit: operating a motor vehicle while under the influence of intoxicating liquors or narcotic drugs along a highway and while operating the said motor vehicle under the influence of intoxicating liquors or narcotic drugs did run the motor vehicle in which the said Arthur M. Humpries was driving over, upon, into or aginst the motor vehicle in which the said Joann E. Sloan was driving and as a proximate cause thereof, unlawfully killed the said Joann E. Sloan.”

When the trial began on March 1, 1976, the appellant made a motion to dismiss or for a continuance of the trial, based on an article appearing in that morning’s Huntsville newspaper. The article contained a synopsis of the circumstances surrounding the collision and quoted the district attorney as saying: “ ‘Eventually I’ll find 12 people who will convict for murder in the first degree in Madison County.’ ” In support of this motion, the only evidence offered was the newspaper article.

After a jury was chosen, the State presented the following evidence.

On October 5, 1975, Joann Sloan left her apartment about 3:30 P.M. and drove her Volkswagen automobile to the intersection of Memorial Parkway, South, and Logan Drive in Huntsville, Alabama. It was about 4:00 P.M., when she entered the intersection and a car driven by the appellant collided with her car and she was killed.

Approximately the same time, John Walters was driving a Vega automobile east on Logan Drive. He testified that he had stopped at the light and was waiting for the light to change when he looked to his left and saw a girl in a Volkswagen. He stated these were the last things he remembered and that he did not recall the light changing, but that the only thing that he next remembered was being upside-down in his car.

Richard Saunders Jones, a captain in the United States Army, on October 5,1975 was in the vicinity of Logan Drive and Lily Flagg, where they intersect Memorial Parkway. He said that it was a few minutes after 4:00 o’clock and he was behind Sloan’s car on Logan Drive. The light changed from red to green and the car driven by Sloan and the car next to her proceeded side by side into the intersection. At that point Jones saw a Chevrolet coming down the Parkway when he stopped. A “split' second” later the collision occurred. Jones saw the Chevrolet out of the corner of his eye for a little less than two seconds before the impact. In his judgment, the Chevrolet was traveling about fifty miles per hour when it entered the intersection. Jones recalled that as the Volkswagen and the Vega entered the intersection, the Chevrolet collided with the Volkswagen in the area near the driver’s door. The collision forced the Volkswagen into the Vega which turned over on its roof. Jones stated that before the Vega came to rest on its roof in the median of the road, it turned over one and one-half revolutions.

Jones did not recall seeing the appellant’s car apply its brake or hear any “screeching or squealing of brakes.” He said that the car driven by the appellant did not slow down prior to the impact.

After the collision Jones went over to the Volkswagen to determine if the girl could be moved. He said that the door would not open and since the gas tank was ruptured, he was afraid of fire. He could not recall trying to cut the ignition off, but said that when he could not move the girl he went to give aid to the person in the Vega. It was at that time that he saw the appellant get out of his Chevrolet, shut the door, and just stand there. Jones remembered calling to the appellant but could not remember whether the appellant responded. He did not take the girl’s pulse but in his judgment she was dead. Jones testified that after the police arrived, he remained in the area because he “. . was curious whether it [the traffic light] had mal-functioned.” He said the light was working properly.

Peggy Jane Barber was in the vicinity of Logan Drive and Memorial Parkway when the collision occurred. She was on Lily Flagg going to Logan Drive and had stopped for a red light. Barber said that she . . was looking directly at the light in front of me and as it turned green she proceeded across but as she reached the median, “. . a Caprice hit the Volkswagen and Vega that was pulling out from Logan.” According .to Barber the accident occurred right in front of her eyes and she did not hear “squealing of tires” but did hear a “loud explosion” when the cars hit. She did not see -the Chevrolet coming but did see the cars in front of her. Barber explained that she was not paying any attention to the cars but “I was mostly looking at the light so I would know when to proceed on across.”

Jean Dewitt, a practical nurse at the Huntsville Nursing Home, arrived at the scene of the collision about 4:00 P.M. She observed a girl penned in a car and said that “. . . she was cyanotic and she was having Chain-Stokes respiration.” Dewitt explained that the girl would breathe and then stop for ten or fifteen seconds. The motor of the deceased’s car was still running and gasoline was everywhere. Dewitt could not get the girl out, and she asked a man to “cut the engine off” and he did. She stated “. . . there was another car upside down and there was a male in it.” After she went over to the other car she returned to the Volkswagen. According to Dewitt, at that time the girl was no longer breathing.

William Dobbs was employed by the Huntsville Police Department and on October 5, he received a call to go to Logan Drive and Memorial Parkway, South. He was advised there had been a fatality. Upon arrival, he found there had been a three-car accident. He said that a 1973 Vega was upside-down in the median facing south, a 1973 Chevrolet Impala was sitting upright heading south, and a 1966 Volkswagen was in front of the Chevrolet. The officer said that the victim was still in her car and that Phil Armstrong made certain photographs, all of which were admitted by agreement during the trial. He made no measurements himself but said Officer Russo did. Dobbs said there were some skid marks but he could not determine if they were made by the 1973 Impala. He acknowledged there were marks leading from where the Volkswagen was hit to where the cars came to rest. Behind the place where the cars collided he could not find any skid marks showing where the appellant had applied his brakes. According to Dobbs, the speed limit in the area of Memorial Parkway where the collision occurred was fifty miles per hour.

The officer said the appellant, in response to questions, said that he was the driver of the car and that he had been drinking. Dobbs observed the appellant for about thirty minutes, and it was his opinion that Humphries “was very intoxicated.”

Jerry Wheeler, a policeman, testified that 4:30 or 5:00 P.M., on October 5, 1975, he carried the appellant to the Huntsville Hospital. The appellant was in Wheeler’s presence for ten or fifteen minutes but the officer did not have any conversation with him. Wheeler described the appellant as being unsteady on his feet and said his attitude appeared to be that of “total unconcern.” On reaching the hospital, Wheeler spoke with the appellant whose speech “appeared to be slurred.” The officer was present when the blood was taken from the appellant and the “vacutainer” containing it was turned over to him. Wheeler said that he marked and put his name on the “vacutainer” and then turned it over to the toxicologist.

Helen D. Bryant, a registered nurse at the Huntsville Hospital, testified that on October 5, 1975, she drew a blood sample from the appellant. Bryant said that the appellant had signed a release in her presence and that the vial containing the appellant’s blood was given to the police officer who was with him.

Martha Odom was employed as a toxicologist with the Huntsville Division of the Alabama Department of Toxicology. She testified as to her education, experience and background and said that she had been performing alcohol analyses since January of 1973. Odom stated that on October 6, 1975, she received a blood sample from a fellow worker about 8:15 that morning. According to Odom, the sample had the name “Humphries” on it and the “initials J W 334” written on the plastic bag containing it. She analyzed the specimen and found it contained 0.25 percent ethyl alcohol.

Over appellant’s objections, Odom was allowed to testify:

“A person with this level alcohol in their blood would be considered to be under the influence of an intoxicated beverage and incapable of safely operating a motor vehicle or doing any other task which would require a similar degree of skill or muscular coordination.”

She added that some of the effects that a person might experience with 0.25 percent concentration of alcohol in his blood would be:

“. . . signs of some mental confusion; there might be some slight muscular incoordination; maybe slight visual defects as far as being able to see things clearly.”

On cross-examination, she acknowledged that a one hundred and sixty pound person, over a period of an hour, who had drunk seven or eight “beers” or seven or eight “miniatures of whiskey” would have 0.25 percent ethyl alcohol in his blood. Odom said that behavior is based on the amount of alcohol in contact with the brain at a particular time. She explained:

“. . . a smaller person could consume a less amount of alcohol to reach .25 than a heavier person. The time of absorption is pretty much the same, depending if they have the same amount of food in their stomach, these kind of things.”

According to Odom, the absorption rate would depend on such things as the condition of the stomach and the form in which the alcohol was consumed.

Odom testified that she made an analysis of the blood specimen taken from the deceased and found that it did not contain any ethyl alcohol.

Samuel Spry was the coroner for Madison County, and, after he was called as a witness by the appellant stipulated that the coroner “. . . did make an examination of Joanne Sloan and she was killed and the cause of death in his opinion was the automobile accident.”

Robert Stephen Russo, a police officer, drew a diagram depicting the scene of the collision and the location of the cars. The diagram and other depictions were admitted in evidence by stipulation. At the end of his testimony, the State rested its case, and out of the jury’s presence the appellant made motions to exclude the State’s evidence as to murder in the first degree, second degree and manslaughter in the first degree. When these motions were overruled the appellant took the stand in his own behalf.

Humphries, who was married and the father of two boys, was forty-one years old and employed by “D.C. & E., Constructors and Engineering Contractors.” He testified that on October 5,1975, he was driving a 1973 Chevrolet Caprice to Huntsville when he stopped at a “little Chinese place” on “north Parkway,” to eat. He said that he could not eat the food but did drink one beer. This was approximately three o’clock and upon leaving there he went to “Terry’s Pizza” which was located on the “south Parkway” about two blocks north of Logan Drive. Whilé there he drank two more “beers” and ate a pizza. He then started to his home. Humphries testified, “I was going down the Parkway between 40 and 50 and the light was green and the next thing I knowed [sic], there was a car in front of me and there was a collision and that’s all I really remember.” He stated that the light was green and that the type of car that pulled out in front of him was a Volkswagen.

Appellant said that on the day in question the only alcoholic beverages that he had consumed were five “beers.” One at the “Jade Pagoda,” two at “Terry’s Pizza,” and two at a friend’s house at approximately 11:00 that morning. Humphries said that he did not feel any strong effects of alcohol and was not unsteady on his feet. He stated that his automobile was under control and that he was driving it properly. Further, the appellant said that he could see the traffic light and that he knew that it was green. Humphries stated that at the time he saw the Volkswagen he picked up his foot, “to hit the brakes” but did not know if he had.

On cross-examination, the appellant testified that, about one-half block from where the collision occurred, he looked at his speedometer and he was driving forty-five or fifty miles per hour. He said that his vision was not blurred and when he checked his speedometer he was going forty-five miles an hour. Humphries stated that when he approached the intersection he was traveling about forty-five miles an hour and he looked up at the light and it was green. He said that he did not see the Volkswagen until right before he hit it.

The appellant explained that the reason he did not attempt to help anyone was not because he was unsteady on his feet, but because “I know you ain’t supposed to move anybody when they have had an accident.”

Humphries admitted that in August, 1954, he plead guilty to burglary and grand larceny, but said he was given probation on a four-year sentence.

The appellant called seventeen character witnesses who testified that his general reputation in the community was good and that his reputation for truthfulness was also good.

Bobby Knowles, the superintendent of traffic engineering for Huntsville, stated he was in charge of traffic lights and their operation. He testified that the light at the intersection of the Parkway and Logan Drive was “. . .a free floating, fully actuated traffic signal.” Knowles explained that the traffic signal was not connected to any other and was totally independent and that “fully actuated” meant the signal worked on “total traffic demand.” He said that the amount of time it stays green depends on the amount of traffic on the street at the time. During his testimony, he explained to the jury the terms: “max-out,” “gap-out,” “peak-out,” “lock-in,” and “dilemma zone,” which were terms used in connection with traffic signals.

On cross-examination, Knowles stated there had been no report of any malfunction of a traffic signal at the intersection in question on October 5, 1975. He acknowledged that the light was working properly and that when it was checked on September 22, 1975 it was found to be working properly-

On re-cross-examination, Knowles was asked:

“Q Let me ask you one other question, this dilemma thing can be confusing. When you say dilemma time, if a person travelling on the Parkway saw a green light and never saw anything else travel-ling south, would it be possible for the people travelling in these directions also to see a green light?’
“A No sir.
“Q No way?
“A No way.”

On completion of the defendant’s case, the State called in rebuttal, Pam Pinson. She testified that on October 5, 1975, she was at the intersection of Parkway and Lily Flagg. Pinson said that she had stopped, because the light had turned red and was waiting to turn left into Lily Flagg. She testified that “. . . within a matter of seconds this car came whizzing by and the Sloan car had started across and this other car rammed into the Sloan car.” Pin-son said she did not hear any tires squealing and after the accident, the light was still red.

I

The appellant contends that the facts in the instant case are not sufficient to warrant the jury’s verdict of manslaughter in the first degree. Counsel argues:

“To constitute wanton negligence so that homicide resulting therefrom is voluntary manslaughter there must be a design, purpose, or intent to do- wrong, or reckless indifference to or disregard of the natural or probable consequences of the act done.”

What constitutes manslaughter in the first degree has been stated by this court many times. Judge Price in Gilliam v. State, 38 Ala.App. 420, 89 So.2d 584, stated:

“The principle is well recognized and has been stated many times that ‘In order to constitute manslaughter in the first degree, there must be either a positive intention to kill, or an act of violence from which, ordinarily, in the usual course of events, death or great bodily injury may be a consequence.’ ” [Citation omitted.]

See also: Hammell v. State, 21 Ala.App. 633, 111 So. 191; Jones v. State, 33 Ala.App. 451, 34 So.2d 483; Johnson v. State, 34 Ala.App. 623, 43 So.2d 424.

In the same opinion, this court, quoting from Gurley v. State, 36 Ala.App. 606, 61 So.2d 137, 139, recognized that:

“ ‘If one drives an automobile in such a manner as to evidence a wanton and reckless disregard of human life at the time and place and under the circumstances, and such driving proximately causes the death of another, the act would be manslaughter in the first degree whether the positive intention to kill is proven or not. Reynolds v. State, 24 Ala.App. 249, 134 So. 815, 816; Graham v. State, 27 Ala.App. 505, 176 So. 382; Jones v. State, 33 Ala.App. 451, 34 So.2d 483.’ ”

Under the evidence in the present case it became • a matter for the jury to determine whether the accused was guilty of manslaughter in the first degree.

As can be seen from the evidence recited above, the State showed that the appellant while drunk drove his automobile along a public highway and that the appellant’s automobile appeared to be traveling at fifty-five miles per hour at the time it struck the deceased’s car. It is uncontested that the collision was of such force that the deceased’s Volkswagen was knocked into the Vega, which was beside it in the next lane. The impact caused the Vega to rise, make one and one-half revolutions and then come to rest on its roof. It is also uncontested that appellant’s blood contained 0.25 percent alcohol, which was two and one-half times more than the legal presumption (0.10 percent of alcohol in the blood, T. 36, § 155(3), Code of Alabama 1940, Recompiled 1958, 1973 Cum.Supp. to Vol. Eight) for driving while intoxicated.

All of these facts, along with the fact that the appellant approached the intersection at a high rate of speed without stopping, were sufficient, in our judgment, to justify the jury’s verdict. Further, it was sufficient to warrant the jury’s conclusion that Humphries’ conduct was wanton and evinced a reckless disregard for human life.

The court was not in error in overruling the defendant’s motions to exclude the State’s evidence and was correct in denying the defendant’s motions for “directed verdicts.”

II

We have reviewed that portion of the record containing the motion for a dismissal or continuance due to the newspaper article and have examined the article. We note that the appellant did not present any evidence in behalf of his motion and that the actual article was not unduly prejudicial. Under the law in Alabama, it is clear that on such a motion the burden is on the defendant to show to the reasonable satisfaction of the trial court that a fair trial cannot be had or an unbiased verdict rendered because of such publicity. Godau v. State, 179 Ala. 27, 60 So. 908; Mathis v. State, 280 Ala. 16, 189 So.2d 564.

The Supreme Court of Alabama noted in Mathis v. State, supra, that publicity by press alone does not warrant a continuance and it is a matter addressed to the trial court’s discretion.

In our judgment the court’s ruling on this motion was correct.

Ill

Under T. 15, § 389, Code of Alabama 1940, Recompiled 1958, we have reviewed the record several times, and in particular, have examined the appellant’s twenty-three requested charges refused by the trial court. In our judgment, the trial court properly refused these charges. They were either incorrect statements of the law, abstract or substantially covered in the court’s extensive oral charge to the jury.

Our examination of the record did not reveal any error, and the case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Earl Parks DUNN v. STATE.
    8 Div. 936.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    John F. Proctor, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State, ap-pellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Petitioner-appellant, an indigent, was convicted in the circuit court of Jackson County of a homicide and sentenced to twelve years imprisonment in the penitentiary. Sometime prior to this conviction he was convicted in the federal court of an offense and was sentenced to the federal penitentiary for a short term of years, not over five years. The exact length of the sentence is not clear.

The federal court granted probation and revoked it when he was convicted of the homicide, but he remained in the State’s custody. This latter imprisonment was in the Jackson County Jail due to the crowded condition of the State penitentiary.

The conviction of homicide and the judgment therefor was on December 10, 1975. As we understand the record, the federal conviction was on March 15, 1973. Appellant did not appeal his State conviction and, as we read the record, he did not appeal the federal conviction.

On or about October 23, 1976, appellant-petitioner filed an instrument with Honorable Leigh M. Clark, who was the presiding judge at the homicide trial, supra. Judge Clark forwarded the instrument to the circuit clerk of Jackson, where it was filed on October 26,1976, and heard by Judge Clark on November 5, 1976.

It appears that appellant’s petition was a pro se instrument which we will not undertake to label, but we will state the relief sought in the instrument.

As we view the instrument so filed, petitioner sought to get the circuit court to adjudge the State sentence to run concurrently with the federal sentence.

It also .appears in the record (both in the instrument and in a colloquy with the court) that the homicide victim had a brother in the Alabama penitentiary who had threatened to kill petitioner if he ever got a chance. Hence, he also petitioned the circuit judge to transfer him to the federal penitentiary to avoid the potential jeopardy of his life.

It appears also that petitioner did not have a lawyer, either employed or appointed, when the instant petition was heard before Judge Clark. Under the circumstances, we know of no law that required the court to appoint a lawyer.

It appears to us that the judge was very patient in hearing petitioner’s complaint and objections, supra. The court carried on an illuminating colloquy with him to ascertain what relief petitioner wanted and also allowed the petitioner to state the facts and objections under oath. The court denied the petition.

The court went further and entered an appeal to this court, ordered a transcript, and provided him an attorney to present this appeal.

It appears to us that the denial of relief was correct. The time for appealing the homicide judgment had long since expired when appellant-defendant presented his petition, supra, to Judge Clark. The court no longer retained jurisdiction of the judgment. T. 13, § 119, Code of Alabama 1940, Recompiled 1958. The court was without jurisdiction to adjudge that the sentence run concurrently with the federal sentence.

Likewise, we know of no law which authorized the circuit court, in this case, to transfer the prisoner to the federal penitentiary for execution of his sentence there imposed. Even if the circuit court had jurisdiction, we would not disturb the court’s refusal to order the sentence to run concurrently with the federal sentence.

We do not think in a petition of this nature that the petitioner was entitled to an appointed attorney at the trial level. It appears though that the trial court well protected the petitioner in seeing that petitioner was given ample opportunity to present his case orally to the court and to get the facts in the record. T. 15, § 318(6), supplement 5 to Recompiled Code, 1958, has no application to this proceeding. The appointment of an attorney to perfect this appeal was a liberal gesture to appellant.

We hold that the judgment of the trial court in denying relief to appellant-defendant should be and 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.


author: PER CURIAM. PER CURIAM. BOYD, Justice,

text:
    Gerald A. LEWIS, as Comptroller and as Head of the Department of Banking and Finance, State of Florida, Appellant, v. BANK OF PASCO COUNTY, et al., Appellees.
    No. 48411.
    Supreme Court of Florida.
    Nov. 12, 1976.
    On Motions For Clarification and To Appear As Amicus Curiae and For Rehearing March 17, 1977.
    Ed Kuhnel, Gen. Counsel, William B. Cor-bett, Jr., Asst. Gen. Counsel and Fred 0. Drake, III, Asst. Gen. Counsel, Tallahassee, for appellant.
    Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs & Odom, Tallahassee, for appellees.
   PER CURIAM.

Affirmed.

OVERTON, C. J., and ROBERTS, ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents.

ON MOTIONS FOR CLARIFICATION AND TO APPEAR AS AMICUS CURIAE AND FOR REHEARING

PER CURIAM.

This matter is before the Court on a Motion for Clarification and To Appear As Amicus Curiae filed by The First Bank of Port Richey (proposed), The Public Bank of St. Cloud (proposed), and The Gibsonton State Bank (proposed) and the Petition for Rehearing filed by Gerald A. Lewis, as Comptroller and as Head of the Department of Banking and Finance, State of Florida. Both motions are directed to this Court’s opinion dated November 12, 1976, which affirmed the ruling of the Circuit Court of the Second Judicial Circuit for Leon County, dated November 17, 1976. The Motion for Clarification and To Appear As Amicus Curiae is granted; the Petition for Rehearing is denied.

To clarify our opinion of November 12, 1976, we are setting forth the scholarly and well-reasoned opinion of the Circuit Judge of the Second Judicial Circuit. That opinion reads as follows:

Plaintiffs and the defendant have moved for sumary judgment. They agree that a decision of this case turns upon questions of law.

Plaintiffs are banks authorized to do business under the laws of Florida and directors and stockholders of such banks. As such they are proper parties to seek a declaration of the law posed by this question:

May the Comptroller of the State of Florida demand, and secure, from banking corporations lists of all their stockholders and release such lists to the news media or otherwise open them for inspection by the public?

The plaintiffs do not question the authority of the Comptroller to examine the stock books of banks, along with all other records reasonably material to the performance of his duties in supervising banks. Nor do they question their duty to prepare and furnish to the Comptroller accurate lists of all their stockholders and the number of shares owned by each.

The sole question at issue is the authority of the Comptroller under existing law to release the information contained in such lists to the public and the news media.

Before examining the applicable law it may be well to observe that, insofar as the statutes are applicable, the information contained in the stock book of a bank is in exactly the same status as the information contained in its records of deposits, of outstanding loans, and the financial statements of all borrowers or applicants for loans from the bank. It is, of course, necessary for the Comptroller to have access to these records in order to intelligently determine the solvency of the bank.

While the Comptroller must, in the overriding public interest, have access to all of a bank’s records which may be in any substantial degree, material to its solvency, this does not mean that the public or the news media should be permitted to examine the records.

The statute which makes public records open to the public, Chapter 119, Florida Statutes, expressly provides in Subsection 119.07(2):

“All public records which presently are deemed by law to be confidential or which are prohibited from being inspected by the public, whether provided by general or special acts of the legislature or which may hereafter be so provided, shall be exempt from the provisions of this section.”

It will be observed that records referred to in Section 658.10(1), Florida Statutes, are expressly exempted from the right of public scrutiny.

Section 658.10(1), Florida Statutes, says in part as follows:

“Division records.—
All bank or trust company applications, investigation reports, examination reports, and related information, including any duly authorized copies in possession of any banking organization, foreign banking corporation, or any other person or agency, shall be confidential communications, other than such documents as are required by law to be published, and shall not be made public, unless with the consent of the department, pursuant to a court order, or in in response to legislative subpoena as provided by law.” (Underscoring supplied)

The defendant relies upon the underscored clause as giving him authority, having demanded and received from banks information as to the names and stock holdings of all their stockholders, to deliver such lists to all news media and to the public generally.

It cannot be denied that, although inconsistent with other provisions of this statute, as well as Subsection 119.07(2), the literal meaning of the words used by the legislature gives the Comptroller this right. The Court does not have authority to change the statute.

But the Court does have the authority, and the duty, in appropriate cases, to declare legislative acts to be in conflict with the Constitution and, to the extent of such conflict, to be invalid.

Clearly the statute itself does not give the public or the news media the right to inspect, copy and publish the information received by the Comptroller in the course of performing his duties under the banking laws. Such information is under the statute confidential except when released “with the consent of the department.” There are no restrictions, limitations, or guidelines provided in the statute to limit or regulate the action of the department in granting a [sic] withholding consent to the news media inspecting, copying and publishing any information in a bank’s records.

As the statute is written, the Department may release the financial statements of some borrowers, the bank balances of others and the stock holdings of others entirely at the whim or caprice of the Comptroller. The fact that, as of the present time, the Comptroller has attempted to exercise such authority only as to stock holdings in banks is immaterial. The validity of the power sought to be vested in the Comptroller must be measured by the scope of the grant of power, not the extent to which it has been exercised.

As the statute is written, it makes a vast volume of private records, necessarily subject to governmental inspection confidential, but then gives the Comptroller unrestricted and unlimited power to exempt particular records and items of information from the operation of that provision of the statute making them confidential.

In other words, the Department is given power from day to day to say what is the law as to the confidential nature of any records of banks which the Department has the right to inspect or include in the reports of bank examinations.

The Constitution does not permit this delegation of legislative power.

The Court is not expressing any opinion as to the power of the legislature, by appropriate statute, to require that the ownership of all stock in a bank be a matter of public information. The Court is merely holding that the legislature has not done this and has not, with constitutional guidelines, delegated that power to the Department of Banking or the Comptroller.

It is, therefore, ADJUDGED:

1. So much of Section 658.10(1), Florida Statutes, as purports to authorize the publication of records which are otherwise confidential “with the consent of the department” of banking is invalid.

2. The Comptroller has no authority to release to the public or to permit inspection by the public or the news media of any records of the names and stock holdings of the stockholders of the plaintiff banks.

3. The Defendant, Gerald A. Lewis, as Comptroller of the State of Florida and ex-officio head of the Department of Banking, is permanently enjoined and restrained from releasing to the public or the news media the names and stock holdings of the stockholders of the Plainfiffs Bank of Pasco County, Bank of Ormond-by-the-Sea, Bank of Madison, Bank of Greenville, and Bank of Graceville.

The legal principal guiding the Circuit Judge in this case and which is disposi-tive of the issue under consideration is so well known as to be deemed “hornbook” law. This Court had held in a long and unvaried line of cases that statutes granting power to administrative agencies must clearly announce adequate standards to guide the agencies in the execution of the powers delegated. The statute must so clearly define the power delegated that the administrative agency is precluded from acting through whim, showing favoritism, or exercising unbridled discretion. Dickinson v. State, 227 So.2d 36 (Fla.1969); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968).

Section 658.10(1), Florida Statutes (1975), “. . .is couched in vague and uncertain terms or is so broad in scope that . it must be held unconstitutional as attempting to grant to the . . . [Comptroller] the power to say what the law shall be. .” Sarasota County v. Barg, 302 So.2d 737 (Fla.1974).

Accordingly, the order of the Circuit Court of the Second Judicial Circuit for Leon County, Florida, holding Section 658.-10(1), Florida Statutes (1975), uncontitutional is affirmed.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

The majority opinion says the Legislature had no constitutional authority to authorize the Comptroller to open bank records to the public at his discretion. No prior decisions, statutes or constitutional provisions are cited as authority for this opinion.

Statutes come to this Court with presumptions of validity. It is presumed that sound discretion will be exercised by all public officials. In the absence of any showing that the statute is unconstitutional, and in the absence of proof that the Comptroller is attempting to abuse his discretion, this Court has no authority to make this order against him. The law is valid and there is no abuse of discretion. If the law is objectionable to bankers, they should seek legislative changes.

      . The Comptroller is sued in his capacity as head of the Department of Banking and will be regarded as identical with the “Department" for the purposes of this case.


author: ADKINS, Acting Chief Justice.

text:
    Flora HERZOG, Petitioner, v. Gerald Joseph HERZOG, Respondent.
    No. 49498.
    Supreme Court of Florida.
    March 10, 1977.
    Rhearing Denied June 8, 1977.

      Alan R. Dakan of High, Stack, Davis & Lazenby, Miami, for petitioner.
    John W. Prunty of Prunty, Ross, De-Loach & Olsen, Miami, for respondent.
   ADKINS, Acting Chief Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Third District (Herzog v. Herzog, 330 So.2d 116), which allegedly conflicts with a prior decision of this Court (Shaw v. Shaw, 334 So.2d 13 (Fla.1976)), as well as a prior decision of the District Court of Appeal, First District (Tyrrell v. Tyrrell, 281 So.2d 221), and the District Court of Appeal, Second District (Hobbs v. Hobbs, 136 So.2d 363) on the same point of law. We have jurisdiction, pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner wife filed suit for dissolution of marriage. The trial court entered judgment of dissolution granting (wife) petitioner permanent alimony, the marital home and attorney fees. In so holding, the court found in part:

“That, if the Wife entered into an oral agreement with the Husband, it was done under duress and without advice of independent counsel for the Wife, and therefore, is of no force and effect. That any money paid by the Husband to the Wife since their separation by virtue of the purported agreement would normally have been the amount he would have been obligated to pay for her support, or which he should have paid for the use of her home.”

The court further found that the husband had disposed of the jointly owned personal property from the residence of the parties, and also assets of Gerald J. Herzog, Inc., of which petitioner was a majority owner.

Upon appeal, the District Court affirmed the award of permanent alimony and reversed the award of the home and one-half of the attorney’s fees. In reversing the award of the home the court determined that it was to be held as tenants in common, since respondent gave good and valuable consideration in keeping with his agreement to purchase a one-half interest. Concerning the attorney fees, the District Court said:

“As to the third point relating to attorneys fees, we find no clear abuse of discretion in the award of attorneys fees in this case. . . . However, due to the relative financial status of each party, we find that it was error to order the husband to pay the entire amount of the attorneys fee.” 330 So.2d at 118.

The District Court’s opinion does not point to any legal error committed by the trial court, but instead finds error based upon an apparent re-evaluation of the evidence.

In Shaw, supra, this Court said:

“It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the testimony and evidence from the record on appeal before it. The test, as pointed out in Westerman, supra [Westerman v. Shell's City, Inc., 265 So.2d 43 (Fla.1972)], is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject ‘inherently incredible and improbable testimony or evidence,’ it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.” 334 So.2d at 16.

This was essentially what the First District Court held in Tyrrell, supra:

“The trial court’s judgment is clothed with a presumption of correctness and we do not think the appellant has overcome this presumption. It is not the province of this Court to substitute its judgment for that of the trier of facts in the absence of a clear showing of error.” 281 So.2d at 221.

The Second District Court in Hobbs, supra, stated in part:

“[T]he criterion is not that we would have ruled differently had we been in the position of the chancellor but whether we conclude, with requisite assurance, that the chancellor’s ruling constituted a palpable abuse of discretion.” 136 So.2d at 365.

There is conflict and we have jurisdiction.

The tenancy in common ordered by the District Court based upon the agreement of the parties flies in the face of the findings of fact of the trial court. The finding by the trial court that any oral agreement made was “of no force and effect” due to duress and lack of independent counsel should not be dispensed with so summarily. Generally, in appellate proceedings, the trial court’s findings of fact are shielded from attack and are clothed with a presumption of validity. Even if the appellate court disagrees with the trial court and would have reached a different conclusion had it been in the shoes of the trial court, barring a lack of substantial evidentiary support for the findings of the trial court, the judgment should be affirmed. Greenwood v. Oates, 251 So.2d 665 (Fla.1971); Glass v. Parrish, 51 So.2d 717 (Fla.1951); Trobaugh v. Trobaugh, 81 So.2d 629 (Fla.1955). A review of the record of trial discloses sufficient grounds for the findings of fact issued by the trial court.

As the District Court noted in its opinion:

“[W]e [can] find no clear abuse of discretion in the award of attorneys fees in this case.” 330 So.2d at 118.

We agree with this analysis and would reaffirm the trial court on this point, since absent a showing of an abuse of discretion the finding should stand.

Therefore, the decision of the District Court of Appeal is quashed, with instructions to reinstate the final judgment of the trial court.

It is so ordered.

ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

BOYD, J., dissents.