Carpenter v. State

• Decision Date: 13 April 1965
• Docket Number: 6 Div. 24
• Parties: Charles I. CARPENTER v. STATE.
• Court: Alabama Court of Appeals

Page 336

174 So.2d 336

42 Ala.App. 618

Charles I. CARPENTER v. STATE.

6 Div. 24.

Court of Appeals of Alabama.

April 13, 1965.

Charles I. Carpenter, pro se.

Richmond M. Flowers, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

JOHNSON, Judge.

The appellant, Charles I. Carpenter, was indicted by the Grand Jury of Tuscaloosa County for the offense of robbery. The indictment was filed in the Circuit of Tuscaloosa County on November 26, 1963. Counsel was appointed to represent appellant, and he was arraigned on December 2, 1963. Trial was had on February 17 and 18, 1964, upon a plea of not guilty. The jury returned a verdict of guilty as charged in the indictment and fixed punishment at twenty years in the State penitentiary. Appellant was adjudged guilty and sentenced in accordance with the verdict on February 18, 1964, and he gave notice of appeal and filed a motion for a new trial on that date. A date for hearing on the motion for a new trial was set by the court, and, after being twice continued by the court, the motion was heard and overruled on July 8, 1964. Notice of appeal from the judgment on the motion was given July 31, 1964. The transcript was filed in this court on September 1, 1964.

On October 22, 1964, appellant filed in this court a 'Notice on Direct Appeal,' in which he informed the court that 'due to circumstances beyond his control he will not be able to perfect his appeal in this cause,' and he also requested this court to retain the transcript so as to expedite the court's ruling on a petition for writ of error. He filed a 'Petition for Writ of Error' in this court on November 3, 1964, which in form appears to be no more than a brief on appeal.

As a general rule, a writ of error to obtain a review by an appellate court cannot be taken while a prior valid appeal for such purpose is still pending, and if it is attempted, the writ of error will be dismissed unless the appeal was dismissed or abandoned before bringing the writ of error. See 4 C.J.S. Appeal and Error § 27.

The appellant stated in his notice of October 22 that he would not be able to 'perfect' his appeal. The appeal was perfected when he gave notice of appeal. McDaniel v. State, 39 Ala.App. 157, 96 So.2d 319. Appellant apparently meant that he would not be able to file a brief. A valid appeal was pending in this court when appellant filed his 'Notice on Direct Appeal' and his 'Petition for Writ of Error,' and we do not construe the 'Notice on Direct Appeal' as expressing an intent to dismiss or abandon the appeal. Therefore, the 'Petition for Writ of Error' will be dismissed and the case will be considered on the appeal.

The State's case was based on the theory that appellant and two accomplices, Larry Beck and Troy O'Neal Beck, committed robbery at Allen-Jemison hardware store in Tuscaloosa, Alabama, on Sunday, October 13, 1963. The State proved that a safe or vault in this store was broken open on that date and that approximately $1,709.00 in currency, cash and coins was taken therefrom. The alleged accomplices were tried and convicted of this robbery prior to appellant's trial. They were tried under a plea of guilty according to their own testimony.

The State's first witness was Mr. A. C. Cade, President of Allen-Jemison Company. His testimony was substantially as follows: On Sunday, October 13, 1963, at approximately 10:30 A.M., he went en route from Sunday School to the post office and then to the Allen-Jemison store. He entered the store and walked up a stairway leading to a second-story office area where a safe, or vault, was located. After taking a few steps at the head of the stairway he heard someone behind him say, 'Stop and throw your hands up.' He turned and faced a man behind a counter who held a shotgun, pointed at Mr. Cade, and who had a 'handkerchief or rag around his face, covering up to the bridge of his nose.' Cade faced the man with the gun for a 'few seconds' before he was ordered to turn around and lie down, which he did. While lying on the floor he heard the man with the gun and another man whom he had seen standing behind a post, whispering to each other. Upon being ordered to do so, Cade stood up and walked into an ante-office, where he was again ordered to lie on the floor. He faced both of the men for 'five or six seconds' as he walked to the office and he notice that a 'strip was off the vault.' Upon lying down the second time he was blindfolded and his feet and hands were tied together with rope. He was approximately twenty feet from the vault. He remained on the floor for an hour and a half to two hours, during which time he heard hammering noises, and what he thought was 'chiseling going on inside the vault.' After hearing noises that sounded like the men were leaving the store, Cade managed to free himself from the ropes and call the police. Police officers arrived at the store 'immediately,' or about 12:30 or 12:45 P.M.

Cade testified on direct examination that appellant was the man in the store who wore the mask and who held the gun. On cross-examination he stated that the man with the gun had 'light, sandy hair, long.' He testified that he told someone in the Sheriff's office after the robbery that the man with the gun had 'long and dark' hair. He also testified that he could not identify appellant in a police line-up shortly after the robbery, but that after having an opportunity to observe and study appellant during the Beck trial, it was his 'best judgment' that appellant was the man in the store with gun.

Larry Beck, one of the alleged accomplices, testified that he participated in the robbery, that his brother Troy drove him to a point near the Allen-Jemison store on the morning of the robbery, and that he and another man, whom he refused to identify, entered the store and broke open the safe therein. When asked if he had been threatened with bodily harm if he testified in this case, he replied, 'To a certain extent.' He did not say who had threatened him. Larry claimed that he was 'hopped up on dope' at the time of the robbery. He testified that he did not hold a gun on Mr. Cade or tie him up, but that he was present and saw these things done. His testimony presents a contradiction as to whether his brother Troy was the other man who entered the store. However, he testified that when he left the store he telephoned his brother to come get him, and that his brother did come get him. Larry further testified that appellant had been living in his house for about a week prior to the robbery, that after the robbery the money taken from the Allen-Jemison safe was divided at his house, and that appellant was given $570.00 of this money.

Troy Beck testified that he drove his brother Larry and another man, whom he refused to identify, to a point near the Allen-Jemison store on the morning of the robbery. He refused to say who the other man was, 'on the ground that it may tend to danger my life.' He testified that no direct threats had been made on his life. After letting his brother and the other man out of his car near the Allen-Jemison store, Troy drove to Larry's house, reaching there about 7:00 to 8:00 A.M. He testified that he did not enter the Allen-Jemison store at any time on the day of the robbery. He testified that he returned to the vicinity of the Allen-Jemison store about 12:00 or 1:00 P.M. after receiving a telephone call from Larry, who asked him to come get him. He stated that he picked up his brother Larry and the same man he had driven to the store area earlier in the morning. Troy further testified that about 45 minutes after he picked up the two men, his brother Larry gave him over $500.00 at Larry's house.

The appellant and Larry Beck were arrested by officers of the Tuscaloosa Police Department at approximately 2:00 P.M. on the day of the robbery. The arrests were made on a street in the City of Tuscaloosa after the officers stopped an automobile in which appellant, Beck, and Beck's wife and two children were traveling. The officers searched the appellant's person at the time of his arrest and seized over $500.00 in cash found in his pockets.

It was admitted in evidence that appellant escaped from the county jail prior to his trial. He was apprehended in another county and returned to jail.

Appellant voluntarily testified in his own behalf on advice of counsel. He stated on direct examination that he was 43 years of age, that he has spent 23 years in prison for crimes of burglary, and that he considered himself an expert locksmith. On cross-examination he testified without objection that he had 'cracked' between 75 and 100 safes in his lifetime for the purpose of stealing money. He denied taking part in the robbery at the Allen-Jemison store. He testified that he, Larry Beck, and Troy Beck drove to town and ate breakfast at a restaurant on the morning of the robbery, and that they returned home immediately after having breakfast. Appellant offered no evidence to show where he was when the robbery occurred.

Counsel was appointed to represent appellant before his arraignment on December 2, 1963. On February 15, 1964, two days prior to the date set for trial, appellant informed the court by letter that he did not desire to be represented by counsel appointed by the court, that he could best defend himself, but that he would 'accept other help.' On February 17, 1964, the day set for trial, the trial judge, at the request of appellant, appointed new counsel of the appellant's own choosing to assist previously appointed counsel, and gave appellant an opportunity to confer with new counsel. After conferring with his new attorney, and after the new attorney announced ready for trial, appellant stated that he was ready to proceed to trial with both court-appointed attorneys, but then he moved for a continuance on the ground that new counsel did not have sufficient time to prepare for trial. The trial judge did not rule on the oral motion, but...