Barddell v. State
| Decision Date | 18 January 1906 |
| Citation | 144 Ala. 54,39 So. 975 |
| Parties | BARDDELL v. STATE. |
| Court | Alabama Supreme Court |
Appeal from City Court of Montgomery; W. H. Thomas, Judge.
"To be officially reported."
George Barddell was convicted of robbery, and appeals. Affirmed.
The appellant and Roscoe Brown were jointly indicted for robbery and charged with taking two nickels and one dime, of the lawful coin of the United States of America, of the value of 20 cents, from the person of Ike McDonald by violence and against his will. The appellant, Barddell, was tried separately, and convicted, and sentenced to the penitentiary for a period of 11 years. Policemen Robets and Avant testified that they were policemen of the city of Montgomery and that on the night of the ______ day of September, 1904 about 8:30 o'clock, they were out near the Montgomery Brewery, when they met Ike McDonald, and in about 15 minutes after they met Ike McDonald they saw two negroes coming across a field and arrested them. The solicitor asked the witnesses what the negroes said, and the appellant objected to the question because it was illegal, etc. The court overruled the objection and permitted the witnesses to answer. They testified that, as soon as they arrested the appellant, the negroes said that they knew nothing about the robbery, and that this was before anything had been said about the robbery. The appellant also objected to the answer of the witnesses, and moved to exclude it; but the court overruled the objection, and the defendant excepted. Testifying further, witnesses stated that they searched the appellant and his companion, but found no money or weapon upon them. The appellant said that they had spent 20 cents at the Blue Store. This last statement was objected to by the appellant, but the objection was overruled.
The appellant's counsel, in arguing the case as to the identity of the appellant and as to confessions, said The solicitor objected to this argument, and the court excluded these remarks from the jury, at the same time stating that it was not a fact in evidence in the case that when the identity of a defendant is in question that the jail authorities usually testify to a confession, and the defendant excepted.
The defendant's attorney asked the court to instruct the jury that if they believed that any other amount than 20 cents, to wit, a dime and two nickels, was taken, they must find the defendants not guilty, and also to instruct the jury that there had been no testimony to show that the money taken was of the lawful currency of the United States. The court's reply was that it would instruct the jury that if they believed beyond a reasonable doubt that any amount of money had been taken, even only a nickel, they could find the defendant guilty, if they believed beyond a reasonable doubt that the state had proven all the other elements of the defense, and also said to the counsel for the defendant that he knew of no money called a nickel except lawful coin of the United States, and would so charge the jury. The defendant excepted separately and severally to each part of the court's statement.
The defendant requested charge 8, which was refused: "The court charges the jury that if they believe from the evidence that, at the time of the taking of the money alleged in the indictment from Ike McDonald, Ike McDonald had no reasonable apprehension of bodily injury, and that he offered no resistance to the defendant taking the money, then the offense of robbery was not committed."
Charge 6, given by the court for the defendant, was as follows: "Gentlemen of the jury, if you believe from the evidence that there was no violence committed upon the person of McDonald, or that McDonald was in no fear at the time or before the money was taken, then you must find the defendant not guilty."
Just before retiring to consider their verdict, one of the jurors asked the court, "what will be taken off for good behavior, if we should send the defendant off to the penitentiary for life?"
Massey Wilson, Atty. Gen., for the State.
The appellant and Roscoe Brown, two negroes, were jointly indicted for robbery. The appellant, Barddell, was tried separately from his codefendant. The defendants were arrested while together and at the same time and place by Policemen Robets and Avant. After testifying to the arrest, Robets was asked to state what the negroes then said. Against the defendant's objection, the court allowed the witness to testify that the defendants stated as soon as they were arrested that they knew nothing about the robbery. It was shown that before this statement was made nothing had been said about the robbery. If it be conceded that the statement was a confession, or in the nature of a confession, it affirmatively appears from the bill of exceptions that it was voluntarily made. Love's Case, 124 Ala. 82, 27 So. 27; Brown's Case, 120 Ala. 347, 25 So. 182. The same may be said with respect of the statement made by the defendant with regard to spending 20 cents at the Blue Store.
There was no evidence in the case to support the remarks of defendant's counsel which were excluded by the court on the solicitor's motion; hence the exclusion was proper. Pitt's Case, 140 Ala. 70, 37 So. 101; Davis v. Alexander City, 137 Ala. 206, 33 So. 863; Dunmore's Case, 115 Ala. 69, 22 So. 541; Cross' Case, 68 Ala. 476.
The property alleged in the indictment to have been taken from Ike McDonald was there described as "two nickels and one dime, of the lawful coin of the United States of America, of the value of twenty cents." The evidence for the state tended to show that a dime and two nickels in coin were taken by the two defendants from Ike McDonald under such circumstances as would constitute robbery, and there was no substantive evidence that any other amount was taken. True Mr. Keating, after the proper predicate had been laid for the admissibility of the evidence, testified that Ike and York McDonald, on the trial had before the committing magistrate, testified that York was the man that was robbed, and that Ike lost no money. This was not substantive...
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Ray v. State, 2 Div. 224.
... ... Without the reservation ... of an exception, there is nothing presented to us in that ... regard for review. Peters v. State, 240 Ala. 531, ... 200 So. 404 ... Where ... there is no evidence in a case to support the remarks of ... counsel, they are properly excluded. Barddell v ... State, 144 Ala. 54, 39 So. 975. Hence, the trial court ... did not err in excluding from the jury's consideration, ... on motion of counsel ... [27 So.2d 876.] ... for the State, the argument of counsel for appellant that the ... crime was committed on a 'dark' night, there being no ... ...
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Morris v. State
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