Armstrong v. State, 8 Div. 287

Decision Date23 January 1973
Docket Number8 Div. 287
Citation272 So.2d 603,49 Ala.App. 396
PartiesJames Dolphus ARMSTRONG v. STATE.
CourtAlabama Court of Criminal Appeals

James F. Hinton, Gadsden, for appellant.

William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.

W. J. HARALSON, Supernumerary Circuit Judge.

Appellant was indicted for robbery, tried and convicted for grand larceny and sentenced to imprisonment for ten years.

At the conclusion of the State's testimony the appellant moved to exclude the evidence, because the State had not made out a prima facie case. The court overruled the motion.

As a background for our consideration of the Court's ruling on the motion, we set out a brief statement of the testimony adduced by the State as follows: on the morning of February 2, 1968, at about 11:30 a.m. Earl Bice, who was manager of the Kwik-Check Store in Huntsville, Alabama, started to go into his office there to get some change, when two men appeared, one of them struck a gun in his side and pushed him into the office, told him to open the safe, which he did, and they took about $10,000 therefrom, put it in a basket with a cloth thrown over it, and with each holding to one side of the basket they left the store through the front door; that during this time, the appellant appeared near one of the check-out counters where the following conversation occurred with State's witness Revel, a check-out clerk:

'A I knew what was happening. So I was going to call the police. As I walked by this man--I said, 'Good morning. How are you?'

'MR. HINTON: May it please The Court, we can't hear what this witness is saying.

'THE COURT: Speak up so counsel can hear you.

'A Well, as I walked by this man--

'Q By what, please, ma'am, by this man?

'A By this man, right. I said, 'Good morning, sir. How are you?' He said, 'I'm fine. Just stand right there and don't go anywhere and you will be, too.''

The clerk was with appellant during the time the two others were in the manager's office, and when they came out and left the store appellant joined them and left with them. Witness Revel together with another clerk, Robert Jones, went outside of the store immediately, saw a car leaving with appellant and the others in it and took the tag number; Mrs. Revel later viewed pictures shown her by the police at Gadsden, the home of the appellant, and picked his picture out of many as the one she had seen on the morning of the occurrence in the store and she identified him at the trial; Robert Jones who was on the outside of the store at the time saw three men with a basket leave the store and get in a car driven by another and drive away. Neither he nor Mr. Bice, the manager, could identify the appellant.

Appellant offered evidence tending to prove an alibi, and the case was properly submitted to the jury.

Under an indictment for robbery, there mayn be a conviction for assault with intent to rob, for larceny, etc. _ _ Robertson v. State, 24 Ala.App. 237, 133 So. 742; Rickard v. State, 44 Ala.App. 281, 207 So.2d 422. (Cases collected in Alabama Digest, Volume 12, Indict. & Inf. k191(9).)

Larceny is generally defined as the felonious taking and carrying away of personal property of another with intent on the part of the taker to convert to his own use, or to deprive the owner...

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14 cases
  • McMurphy v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 7, 1978
    ...deprive the owner thereof. Higgs v. State, 113 Ala. 36, 21 So. 353; Moulden v. State, 47 Ala.App. 573, 258 So.2d 915; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603." See also, Jones v. State, 56 Ala.App. 444, 322 So.2d 735; Volume 13A, Alabama Digest, Larceny, k1. Moreover, the former ......
  • Whitener v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 19, 1980
    ...to the search. Lofton v. State, Ala.Cr.App., 371 So.2d 988, 991 (1979); Woods v. State, 57 Ala.App. 1, 325 So.2d 517; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603. There can hardly be any disagreement with the proposition that to constitute a valid consent it must be freely and volunt......
  • Watts v. State, 6 Div. 651
    • United States
    • Alabama Court of Criminal Appeals
    • October 1, 1974
    ...the concept or definition of larceny, the term 'taking and carrying away,' or a derivative thereof, is usually found. Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603. As to robbery, the conventional term is 'taking . . . from the person of another.' Cobern v. State, 273 Ala. 547, 142 So.......
  • Wilkins v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 17, 1979
    ...deprive the owner thereof. Higgs v. State, 113 Ala. 36, 21 So. 353; Moulden v. State, 47 Ala.App. 573, 258 So.2d 915; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603.' Jones v. State, 56 Ala.App. 444, 447, 322 So.2d 735, 737 In Tucker v. State, 50 Ala.App. 405, 279 So.2d 576 (1973), we f......
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