Baldwin v. State

• Decision Date: 17 August 1971
• Docket Number: 5 Div. 7
• Citation: 47 Ala.App. 136,251 So.2d 633
• Court: Alabama Court of Criminal Appeals
• Parties: Willie BALDWIN v. STATE.

Page 633

251 So.2d 633

47 Ala.App. 136

Willie BALDWIN v. STATE.

5 Div. 7.

Court of Criminal Appeals of Alabama.

Aug. 17, 1971.

Russell, Raymon & Russell, Tuskegee, for appellant.

MacDonald Gallion, Atty. Gen., and Robert E. Morrow, Asst. Atty. Gen., for the State.

ALMON, Judge.

Appellant was convicted in the Circuit Court of Macon County of Robbery and sentenced to ten years in the penitentiary.

At the trial the State's evidence tended to show that the appellant was living in Tuskegee with a man named Jeeter, whose home was next to Lillian Foy Ivey, a seventy year old woman. Around 8:00 or 8:30 P.M. on the night of October, 1967, the appellant knocked at this woman's back door and asked if she had a room to rent. She replied that she did not and then he asked for a drink of water. The woman gave him a glass of water and when she opened the screen door to retrieve the glass, the appellant stepped inside her house and told her he wanted her money. He struck her twice in the face and choked her until she gave him a five dollar gold piece and a ten dollar bill. The appellant testified in his own behalf and denied the robbery.

The only question presented on this appeal involves the pleading of double jeopardy.

The indictment was returned on April 18, 1968. At arraignment on April 24, 1968, counsel was appointed to represent appellant due to his indigency. After the attorney was appointed he had a brief conversation with the appellant and after the appellant assured the attorney of his innocence a plea of not guilty was entered. Later that same day, after appellant's counsel had a conversation with the 'clerk' he filed written pleas of autrefois convict and former jeopardy properly verified in accordance with Tit. 15, § 280, Code, 1940, alleging that appellant had formerly been convicted of assault and battery in the Inferior Court of Macon County, Alabama. It was further alleged that the instant indictment for robbery is based on the same act or transaction as his conviction for assault and battery. The trial court allowed these pleas to be entered and later, on April 29, 1968, the day the case was set for trial, struck them ex mero motu.

For a better understanding of what transpired, we quote from the record:

'THE COURT: Let the record show that the court, ex mero motu, struck defendant's pleas (1) Autrefois convict and (2) Former jeopardy on the ground that the pleas were filed after the plea of not guilty. The plea of not guilty was not withdrawn.

'MR. RAYMON: May it please the Court, we except to the Court's ruling. And now, we would like for this set of facts to appear on the record: That I was appointed to represent the defendant, Willie Baldwin, and after I discussed the matter with him as to whether or not he was guilty and he assured me he was not guilty. That is all that he said. I ask about being in jail and he said he had been in jail since the time of his arrest. That was all the information that was given me by Willie Baldwin. I then entered the plea for him to the indictment not guilty. Subsequent to entering the plea of not guilty, I became aware in discussing the matter with the Clerk that the defendant had been convicted in Inferior Court for assault and battery for a matter arising out of the same transaction. At that time, I asked the Court to allow me to enter the following two pleas: Autrefois Convict and double jeopardy. The Court gave me that permission. Since the Court struck the pleas, I am asking the Court now to be allowed to withdraw the plea of not guilty in order to file with the Court the proper pleas that should have been filed, should I have been aware of the circumstances at the time of the arraignment. That is my question at this time.

'THE COURT: That motion is respectively overruled Mr. Raymon and let the record show that at the time these two pleas of (1) Autrefois Convict, and (2) Former jeopardy were filed, the Court frankly had overlooked the point that they could not be filed after arraignment and after a plea of not guilty had been filed at the arraignment. And furthermore, the plea of not guilty was not withdrawn before the plea of (1) Autrefois convict, and (2) Former jeopardy were filed. After considering the question, the Court is of the opinion that these two pleas of (1) Autrefois convict, and (2) former jeopardy came too late and for that reason these pleas are stricken and the motion of the defendant to now withdraw the plea of not guilty and enter these two pleas is respectfully overruled and denied.

'MR. RAYMON: We have an exception to the Court's rulings. Now, I would like to have the records show that if I were allowed to go forward with the pleas that I have requested the Court to allow me to enter on behalf of the defendant that the defendant would prove that he has been tried and convicted in the Inferior Court of Macon County, Alabama of assault and battery arising out of the same transaction, for which offense, he was fined the sum of $250.00 and sentenced to 180 days in prison and that under those facts the (sic) he is in actuality under double jeopardy under the provisions of Article 1, Section 9 of the Alabama Constitution 1901, as well as the provisions of the United States Constitution of Amendment 14 and Amendment 5, wherein double jeopardy is prohibited, and we would offer to show that he has been previously tried and convicted for an offense arising out of the same transaction, against the same person involved in the present indictment, which said offense if commited, was committed at the same time and would be a part of the offense which he is presently charged at this time. And therefore, his constitutional rights as to double jeopardy have been denied to him because of the fact that the information was not forthcoming to his counsel at the time that counsel was appointed by the Court to defend him in this matter.'

The question then is whether the trial court abused its discretion in striking these pleas after first having allowed them.

We first address ourselves to whether the pleas are meritorious if properly proven.

Art. 1, § 9, of the Constitution of Alabama of 1901 provides that 'no person shall, for the same offense, be twice put in jeopardy of life and limb * * *.'

A single crime cannot be split up, or divided, into two or more offenses. Hurst v. State, 86 Ala. 604, 6 So. 120. Neither can a series of charges be based upon the same act. Gunter v. State, 111 Ala. 23, 20 So. 632; Clayborne v. State, 103 Ala. 53, 15 So. 842; Crosswhite v. State, 31 Ala.App. 181, 13 So.2d 693.

Tit. 15, § 287, Code, 1940, provides:

'Any act or omission declared criminal and punishable in different ways by different provisions of law, shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision.'

In Moore v. State, 71 Ala. 307, where a former conviction of assault and battery was held to preclude a subsequent prosecution for assault with intent to murder, the court said:

'* * * The true rule seems to be, that, if the minor offense is embraced within the major one, as a constituent element, or component part of it, and on the trial of the one there can be a conviction of the other, then a former conviction or acquittal of the minor will bar the major.--Whart. Cr.Ev. § 584; 1 Bish. Cr.Law, §§ 1055--1058. This is certainly the general rule, subject, perhaps, to certain exceptions, either real or apparent.--1 Whart. Amer.Cr.Law, § 563, 566. If such were not the case, as suggested by Mr. Bishop, 'then the prosecutor may begin with the smallest, and obtain successive convictions, ending with the largest (offense); while, if he had begun with the largest, he must there stop--a conclusion repugnant to good sense.'--1 Bish. Cr.Law (6th Ed.) §§ 1057, 1055.

'A conclusive reason for the soundness of this view, to our mind, is, that if a defendant has been tried for the smaller offense--whether acquitted or convicted it is immaterial--and he is...