Carroll v. State, 8 Div. 387
Decision Date | 20 January 1981 |
Docket Number | 8 Div. 387 |
Citation | 407 So.2d 173 |
Parties | Bruce Quillan CARROLL v. STATE. |
Court | Alabama Court of Criminal Appeals |
Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
This is an appeal from a judgment convicting appellant of robbery, in accordance with the verdict of a jury, and sentencing him to imprisonment for fifteen years.
The evidence of guilt was strong and almost conclusive, but a witness for defendant, his former wife, testified positively as to an alibi, saying she and defendant were together in Florida at the time the robbery was committed. The defendant did not testify in the case.
Defendant requested thirty-seven written charges. They were all refused. More than one of them was patterned after charges that have been approved by the appellate courts of Alabama.
Defendant's requested charge number 27 is:
We repeat and apply what we have just quoted from Brooks to refused charge No. 27 in the instant case. For this reason, the judgment of the trial court should be reversed and the cause remanded. We think it unnecessary to discuss the rest of the refused charges, other than to say that most of them were unquestionably properly refused but that the refusal of a few of them is seriously questionable.
We think we should state for the benefit of all concerned that the reversal of this case is regrettable not only by reason of the overwhelming weight of the evidence against defendant, but also because of the possibility that the result thereof is not the aim or desire of anyone concerned. We find a basis for such a possibility in a combination of circumstances disclosed by portions of the record proper and the transcript of the proceedings, which we now narrate.
Defendant was represented on the trial by two employed, able counsel, one from Decatur and the other of Moulton, where the case was tried. They continued to represent him to and through the sentencing proceeding, at which time the court made it known to defendant that he could appeal within the prescribed time. About five days thereafter, he filed what purports to be a pro se notice of appeal, and affidavit of indigency, and a request for a free transcript and an attorney for him on appeal. The court ordered a free transcript and appointed his previously employed Moulton attorney to represent him on appeal. The attorney has filed no brief. The transcript also shows that members of the family of defendant, including his father and mother, were present at the sentencing proceeding, and that defendant's Moulton attorney, in the presence of defendant, made known to the court that members of the defendant's family desired to make "Restitution" of approximately the amount of the money stolen from the victim of the robbery, and that the court in sentencing the defendant said:
The facts stated in this paragraph afford cause for wonder whether a reversal is for the best interest of appellant and whether his appeal was taken merely for the purpose of a delay of the execution of his sentence.
Pursuant to our duty to search the record for error prejudicial to defendant, we find it in the refusal of defendant's requested charge No. 27. For that reason, the judgment of the trial court should be reversed and the cause remanded.
The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK,
serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.
REVERSED AND REMANDED.
All the Judges concur.
ON REHEARING
In compliance with appellee's request pursuant to Rule 39(k) of the Rules of Appellate Procedure, the following is added to the opinion on original submission:
The robbery took place on December 9, 1976. The defendant's ex-wife testified as an alibi witness that she and the defendant accompanied an elderly couple to Ft. Lauderdale in December 1976. When questioned about the exact date on direct examination, the following occurred:
(Emphases are appellee's).
The writer now observes inexactitude and oversimplification in his statement in the original opinion as follows: "The evidence of guilt was strong and almost conclusive, but a witness for defendant, his former wife, testified positively as to an alibi, saying she and defendant were together in Florida at the time the robbery was committed." The statement is hereby modified to read, "The evidence of guilt was strong and almost conclusive, but a witness for defendant, who was married to him at the time of the alleged crime and who was thereafter divorced from him and married to another before and at the time of the trial, testified positively that she and defendant were in Orlando, Florida, on December 10, 1979." In addition, the following is a part of her testimony:
On cross-examination thereafter is a part of her testimony:
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