Fuller v. State
Decision Date | 09 September 1969 |
Docket Number | 6 Div. 393 |
Parties | John Henry FULLER v. STATE. |
Court | Alabama Court of Appeals |
Michael J. Romeo, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Sp. Asst. Atty. Gen., for the State.
Fuller appeals from a judgment that he is guilty of robbing one Clifford Taylor. The jury set his punishment at ten years imprisonment.
Mr. Taylor was in charge of a Kar-go gasoline station October 30, 1967. He identified Fuller as one of two men who robbed him. He testified that Fuller was armed with a sawed off shotgun. Adolph Stoudemire also testified along the same lines.
Fuller's defense was alibi.
The first claim of error arises from the following episode during the State's cross examination of E. H. Holt, a character witness called by the defendant:
'Q You had heard that he was driving a car there that he used in and about his work there by you, or for you, there and on the front of that car were two tires stolen from Mr. Kincaid, who owned the Pure Station right next door there?
'A Will you restate the question?
'THE COURT: Let's pinpoint it in time, then.
'Q At the time of his arrest for this offense here, had you heard or did you hear or had you heard up to this morning that the tires on the front of this man's automobile were stolen from Mr. Kincaid's filling station down here on the corner, right next door to your place of business?
'A After this man placed--
'A Yes, I had heard it.'
It is not needful to analyze this situation because the witness never answered the first question above quoted. Without an objection having been put to the restated question, we have no ruling of the trial judge for us to pass upon. Thompson v. State, 39 Ala.App. 569, 105 So.2d 146; Ellis v. State, 39 Ala.App. 325, 100 So.2d 725; Baldwin v. State, 282 Ala. 653, 213 So.2d 819.
The second contention in brief for appellant is that the evidence was insufficient to have allowed the case to go to the jury. Part of the argument of this point the appellant rests on a claimed conflict between testimony of the State's own witnesses.
In Cooper v. State, 31 Ala.App. 356, 18 So.2d 420, we find:
* * *'
We consider that the State escaped the scintilla danger line in the degree of permissible inferences shown in its proof; this without resort to mere speculation and conjecture. See Ex parte Grimmett, 228 Ala. 1, 152 So. 263.
Fuller's counsel complains that on several occasions the trial judge by interrogating witnesses:
'* * * taking over the prosecution's province he cast aside his cloak of impartiality and, in the minds of the jury, placed himself on the side of the prosecution to such an extent as to constitute reversible error.'
McElroy, Law of Evidence of Alabama (2nd Ed.), § 121.04 states:
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