Toliver v. State

• Decision Date: 09 February 1905
• Citation: 142 Ala. 3,38 So. 801
• Parties: TOLIVER v. STATE.
• Court: Alabama Supreme Court

38 So. 801

142 Ala. 3

TOLIVER v. STATE.

Supreme Court of Alabama

February 9, 1905

Appeal from City Court of Montgomery; William H. Thomas, Judge.

William Toliver was convicted of robbery, and appeals. Affirmed.

The indictment was as follows: "The grand jury of said county charge that before the finding of this indictment Shad Dean and Willie Toliver, alias Crack, feloniously took five bills of the denomination of five dollars each, of the lawful currency of the United States of America, the property of J J. Boyd, 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." A severance was remanded, and the defendant replied separately. It appears from the reccord that the defendant, who is the appellant in this case demurred to the indictment, which demurrer was overruled by the court; but the demurrer is not set out in the record. Boyd, the person alleged to have been robbed, testified that he went down an alley way, and while en route he was assaulted by Shad Dean and Will Toliver; that he recognized the two defendants when they assaulted him; that they struck him a blow which rendered him unconscious, and that he did not regain consciousness until he had been removed to a stable near the scene, and the two men were then standing over him. He positively identified the defendant and Dean as the two men who assaulted him, and identified Dean as one of the men who were standing over him when he regained consciousness, but would not state positively that the other was the appellant, but gave as his best judgment that he was the man. He stated that when he regained consciousness he spoke to the men, whereupon the one whom he took to be the appellant ran, while the other (Dean) remained, and engaged in a conversation with witness. The state offered this conversation, to which the appellant objected, but the court overruled the objection, the testimony was admitted, and defendant duly excepted. This witness also testified that in about a minute after the defendant ran off Dean ran off in the same direction. The defendant objected to this testimony and moved to exclude it. The court overruled the motion, and the defendant duly excepted. The defendant attempted to show that the person who was with Dean at the time of the robbery was one Claude Henry, and during the examination of one of the witnesses introduced by the defendant he was asked what was the character of Claude Henry in the community where he lived. The state objected to this question. The court sustained the objection, and the defendant duly excepted. Upon the introduction of all the evidence the defendant requested the court to give to the jury the following written charge, and separately excepted to the court's refusal to give the same as asked: "Before the jury can convict the defendant, they must be satisfied to a moral certainty not only that the proof is consistent with the defendant's guilt, but...