Biggs v. State

• Decision Date: 07 December 1976
• Docket Number: 3 Div. 576
• Parties: Ronnie BIGGS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 467

346 So.2d 467

Ronnie BIGGS v. STATE.

3 Div. 576.

Court of Criminal Appeals of Alabama.

Dec. 7, 1976.

Rehearing Denied Jan. 4, 1977.

Piel, Lynn & Thiemonge, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.

PER CURIAM.

The appellant, Ronnie Biggs, was indicted on a charge of burglary in the first degree, found guilty as charged by a jury in the circuit court of Montgomery County, and sentenced to twenty years in the penitentiary, and appeals to this Court.

This appeal was submitted to this Court on briefs. The appellant was represented by counsel of his choice in all proceedings in the trial court, and is represented in this Court by the same counsel by court appointment.

The record filed in this Court on August 20, 1976 did not contain a ruling by the trial court on a plea of former conviction of the appellant for an offense of rape committed on the same occasion of the burglary with which he is now charged. Upon motion of the appellee the record has been corrected, and now shows that the sufficiency of appellant's plea of former conviction was argued at length, and submitted to the trial court, was by order of trial judge held insufficient, and the ruling of the trial court excepted to by the appellant. The question presented is this: Is a conviction of appellant for rape a defense to burglary committed by the appellant on the same occasion, and in the same transaction when he committed the offense of rape?

Burglary being an offense against property, and rape being an offense against person, we hold that they are separate and distinct offenses, and are completely unrelated. A conviction of one is no defense to the other. Alola v. State, 39 Ala.App. 215, 96 So.2d 816; State of Alabama v. Standifer et al., 5 Port. 523; Gunter v. State, 111 Ala. 23, 20 So. 632; Brown v. State, 236 Ala. 423, 183 So. 412; Jones v. State, 50 Ala.App. 174, 277 So.2d 920.

Appellant complains that the trial court did not have jurisdiction to try the case against him on the merits without first ruling on appellant's motions to suppress. In the record before us we find two motions to suppress. One is a written motion to suppress all the evidence found and obtained as a direct and proximate result and consequence of statements of the appellant; the affidavit and warrant of arrest; and the affidavit and search warrant or warrants in this case. There was no request for a hearing, no hearing, no evidence in support of the motion, and no ruling on the motion by the court.

We also find an oral motion to suppress evidence with reference to a police lineup. This motion was made in open court after the jury to try the case had been selected, and the witnesses put under the rule. No evidence was offered on the motion. The court, after hearing statements made by counsel, out of the presence of the jury, denied appellant's motion, and informed counsel that he would rule on the matters when the time comes as to whether they are admissible or not.

We hold that as to the written motion to suppress there is nothing presented to this court for review. As to the oral motion, we hold that a pretrial motion to suppress is not necessary, and that objection to the introduction of illegally obtained evidence may be made for the first time when illegally obtained evidence is offered at the trial. The trial court did not commit error harmful to appellant in its ruling. Johnson v. State, 56 Ala.App. 627, 324 So.2d 341; Brown v. State of Alabama, 277 Ala. 108, 167 So.2d 291.

Appellant contends that the trial court erred to his prejudice in overruling his objection to the introduction of a picture of a lineup consisting of five persons; three police officers, unknown to the witness, who was also the injured party, the appellant and a friend of the appellant, who were known to the witness, and overruling his objection to the court's allowing the witness to testify that she identified the appellant in the lineup. The appellant assigned two grounds for his objection. One that appellant was not represented by counsel at the lineup, and second that the lineup as conducted violated standards of justice and fair play. The record discloses that the burglary occurred around one o'clock, A. M. on March 6, 1974. At that time the injured party observed appellant in her bedroom, called police who arrived at her home about one-thirty o'clock, A. M., she knew the appellant, and at that time gave the officers his name. At eleven o'clock, A. M. the appellant voluntarily came to police headquarters with a friend. A lineup of five persons was arranged consisting of three members of the police department, a friend of appellant, and the appellant. The injured party had talked by telephone to one of the police officers who was in the lineup, but did not know any of them by sight, but did know appellant, and his friend. She was escorted to the lineup room by an officer of the police department who had not discussed the burglary with any of the officers in the lineup, or investigating the case except, that he was requested to escort the injured party into the...