Brown v. State, 8 Div. 786
Decision Date | 18 June 1957 |
Docket Number | 8 Div. 786 |
Citation | 96 So.2d 197,39 Ala.App. 149 |
Court | Alabama Court of Appeals |
Parties | James BROWN v. STATE. |
W. A. Barnett, Florence, for appellant.
John Patterson, Atty. Gen., and Robt. G. Kilgore, Jr., Asst. Atty. Gen., for the State.
October 26, 1955, James Brown and five others were indicted for robbing Bill Johnson of some $800. He was tried in the Lauderdale Circuit Court November 16, 1955, on a severance. The whole of the evidence was that presented by the proescution's witnesses. Conformably to the jury's verdict, the court adjudged Brown guilty of the lesser included felony of grand larceny, and after allocution sentenced him to seven years' imprisonment.
Sometime early in the night of October 1, 1955, Mr. and Mrs. Bill Johnson, an elderly couple who lived on the Savannah Highway in Lauderdale County, were visited by two young men who wanted Mr. Johnson to go on a bond. When Mr. Johnson told them he 'wasn't worth anything to go on a bond,' they walked away. Mrs. Johnson, upon being examined in chief, testified that one of the visitors was James Brown. As near as we can make out from her answers on cross-examination, she recanted this identification or at least was much less positive that she had seen him then.
The Johnsons went back to sleep, Mrs. Johnson in the east bedroom and Mr. Johnson in the west. Mr. Johnson apparently had not intended to retire for the night since he had laid down on the bed with his overalls on. In his left front pocket he had a billfold containing $800 made up of one one hundred dollar bill, some twenties, tens, fives and probably two silver dollar coins. This hoard was mainly saved from his welfare checks.
Later in the night came cries of some men asking admittance to the Johnson home on pretext of seeking help because they were 'bleeding to death.' Mr. Johnson unlatched the screen door and two men knocked him 'winding.' Mrs. Johnson meanwhile had come in from her bedroom and was seized by one of the intruders who put his hand over her mouth, held her against the door facing, and told her he would cut her throat if she hollered. The other man had her husband down on his bed. Soon her husband's assailant said, 'Come on, Shorty, I have got it now.' Whereupon 'Shorty' broke the light bulb and the two fled into the night.
Mrs. Johnson, on being released, discovered her husband had blood running down on his face and there was a rock lying on the floor. He told her, 'He has got all my money.'
Mr. Johnson had very poor eyesight and hence could not point out the robbers. Mrs. Johnson, however, named Ray Murphy as her assailant and Charles Hill, Hill v. State, 264 Ala. 636, 89 So.2d 173, as the man who beat her husband.
The defendant had undisputedly been in the vicinity of the Johnson home in the company of his co-indictees (among whom were Hill and Murphy) on the night of the felonious irruption just described. The statement he gave on being arrested reads as follows:
'James H. Brown
'Witness:
'Floyd Mitchell.
'T. O. Howard
'J. Earl Romine
'Frank V. Potts'
Though we might have a mental reservation that the car. James was 'pretty drunk.' They all went to Mr. James Young's store, got gas and took it back to James Brown's vehicle which was stranded about three-fourths of a mile on the highway from Young's store. At the store the defendant spilled his change from paying for the gasoline and generally seemed 'wobbly.'
Brown submits (1) that his intoxication was of a degree sufficient to have kept him from having been able to entertain a 'felonious' intent, and (2) that he was entitled to have given rather than refused his charge A, 'The offense of robbery embraces the offense of assault and battery.'
With respect to that aspect of the evidence showing the effects of the defendant's drinking, the trial court gave his requested charge C:
He claims error in the refusal of charges B, D, and E, which read:
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