Ball v. State, 7 Div. 194

• Decision Date: 25 September 1973
• Docket Number: 7 Div. 194
• Citation: 51 Ala.App. 270,284 So.2d 296
• Parties: Lester David BALL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 296

284 So.2d 296

51 Ala.App. 270

Lester David BALL v.STATE.

7 Div. 194.

Court of Criminal Appeals of Alabama.

Sept. 25, 1973.

Rowan S. Bone, Gadsden, for appellant.

William J. Baxley, Atty. Gen., and Daniel B. Banks, Jr., Special Asst. Atty. Gen., Huntsville, for the State.

HARRIS, Judge.

Appellant was convicted of robbery and his punishment fixed at ten (10) years imprisonment in the penitentiary.He is at liberty pending appeal.

On the night of February 11, 1971, a man walked into an E-Z Curb Store on Hoke Street in the City of Gadsden, Alabama, got a Dr. Pepper from the drink machine and stood around until all customers left, and then at pistol point robbed a seventy-two (72) year old man employee in charge of the store.The amount of money involved was $112.87.The robber told the employee to give him the money from the cash register or he would 'shoot your G.D. brains out.'As the robber was leaving the store, he came face to face with, and brushed into, another man entering the store to get some information as to a street address.The employee gave this man a dime and asked him to call the Police Department and give them a description of the robber.The police were informed the robber had long hair, goatee, heavy beard and sideburns and was driving a 1963 Ford automobile.Within an hour a suspect fitting this description was taken into custody near the Coliseum.The victim of the holdup was carried by a police squad car to the Coliseum where he immediately identified the suspect as the holdup man.The suspect was then carried to the station house and placed in a lineup with four other men.The victim and the man who came in the store as the robber was leaving both picked out a suspect and positively identified him as the holdup man.It was a clear case of mistaken identity.Appellant was not in the lineup.The man they identified was one Bobby Ray Daniels.Daniels was charged with the robbery.

Captain James A. Bragg of the Gadsden Police Department came to the robbery scene and got the Dr. Pepper bottle.At that time he worked in the Bureau of Criminal Identification and Investigation.He qualified as an expert an fingerprint identification.Around midnight on the date of the robbery, Captain Bragg lifted a latent print from the Dr. Pepper bottle.He compared this print with a number of known prints on file with the Gadsden Police Department and found a print that was identical to the fingerprint he lifted from the bottle.The known print was appellant's.Captain Bragg reported his findings to the Chief of the Police Department with the statement that the Department had the wrong man in jail.A warrant was issued for the arrest of appellant and another lineup was conducted.The victim of the robbery and the other witness separately viewed this lineup and both identified appellant as the holdup man.They both made positive in-court identifications pointing to appellants as the robber.

Bobby Ray Daniels was discharged on a writ of habeas corpus and he was not indicted.

Appellant's defense was an alibi.He and his wife, his brother and his wife testified that they left Gadsden around noon on February 11, 1971, for Chattanooga, Tennessee, and did not return to Gadsden until twelve o'clock that night; that the purpose of the trip was to find a tattoo place and have a tattoo on appellant's arm removed or covered over.The tatoo was the initials of a girl that appellant had gone with before he married.

Appellant returned from Viet Nam on November 26, 1970, and married the following December 4th.His bride of two months objected to the initials of his former girlfriend.They all testified they were unable to locate a tattoo parlor.They are dinner and window shopped before starting the return trip.

The jury did not buy appellant's alibi and he was convicted of robbery.

The only insistence of error on this appeal is the refusal of the trial court to give the jury two of appellant's written instructions.Appellant requested forty-four (44) written charges and the trial court gave forty (40) of them and refused four (4).The two refused charges on which a reversal is sought are as follows:

'2.The Court charges the jury that unless the evidence against the Defendant should be such as to exclude to a moral certainty every hypothesis but that of his guilt of the offense imputed to him, you must (sic) find the defendant not guilty.

* * *

* * *

'29.The Court charges the jury that the burden of proof is upon the State, and it is the duty of the State to show, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, every circumstance necessary to show that the defendant is guilty before the defendant is required ti (sic) introduce any evidence in his favor or to explain any circumstances surrounding him, and if there is a reasonable doubt of this defendant's guilt, then you must acquit the defendant.'

Refused charge two (2) was approved by the Supreme Court in Smith v. State, 145 Ala. 17,...