Fuller v. State

• Decision Date: 25 October 1966
• Docket Number: 3 Div. 216
• Citation: 198 So.2d 625,43 Ala.App. 632
• Parties: Gail FULLER v. STATE.
• Court: Alabama Court of Appeals

Page 625

198 So.2d 625

43 Ala.App. 632

Gail FULLER v. STATE.

3 Div. 216.

Court of Appeals of Alabama.

Oct. 25, 1966.

Earl Gillian, Montgomery, for appellant.

Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

JOHNSON, Judge.

Appellant was jointly indicted in three counts with two co-defendants for the robbery of Mrs. B. B. Anderson, 2379 Federal Drive, Montgomery, Alabama. Count No. 1 of the indictment charged that appellant robbed Mrs. Anderson of two ladies blouses of the value of $4.00 each; Count No. 2, that the defendants robbed Mrs. Anderson of one 1959 Ford automobile of the value of $900.00; and Count No. 3, that the property which was the subject matter of the robbery was one key ring containing three keys of the value of $1.30. Appellant requested and was granted a severance and was convicted by the trial jury under Count No. 2, of the indictment. This appeal is made from a judgment of the Circuit Court sentencing the appellant to a term of ten years in the State penitentiary in accordance with the verdict of the jury.

Appellant and several other prisoners at Kilby Prison escaped from a bean field at about 7:30 A.M. on June 22, 1965. Appellant was returned to custody at about 8:24 A.M. on the same date.

Evidence was introduced tending to prove that appellant did not participate in overpowering the prison guard which act allowed the escape of appellant and several other prisoners.

Testimony of appellant tended to show that after leaving the bean field he entered the woods and ran away from the prison. The other two prisoners who were indicted with appellant were Joe Myers and J. W. Allen. They were seen by appellant while he was still in the woods. Appellant asked them which way he was headed but they didn't know. Appellant later came to a clearing and he saw Joe Myers in the backyard of the house which they later entered. Myers said that he was going into the house and that J. W. Allen was already in there. After Myers went into the house, appellant waited a few minutes and then he entered. When appellant got inside the house, J. W. Allen had a shotgun in his hand. Mrs. Morgan her daughter, and her mother, Mrs. B. B. Anderson, were sitting while Joe Myers was questioning Mrs. Morgan about keys to an automobile. Appellant testified to the following:

'Q. Did you say anything to those ladies?

'A. No. I did say--

'Q. Do you recall saying anything while being in the house?

'A. Well, the fact that he had a key to a car--I did say, let's get out of here.'

Appellant denied having asked Mrs. Morgan, daughter of Mrs. Anderson, for clothes. She gave Joe Myers two blouses. Appellant denied having put on one of the blouses.

Mrs. Morgan testified that the first time she saw appellant he was coming through the kitchen and that another prisoner (apparently Joe Myers) was with him. J. W. Allen was already in the living room and was dressed in a guard's uniform, posing as a prison guard. Allen told Mrs. Morgan to 'stay down and to stay in the living room' and that there had been a bad break and he was trying to get help from Kilby. When appellant and Joe Myers entered the living room, J. W. Allen then told Mrs. Morgan that he was a prisoner, not a guard. Appellant never said anything directly to Mrs. Morgan. Mrs. Morgan testified in part as follows:

'Q. Well, all right. What happened when another man that was with Fuller--when they came in--where did they go?

'A. Well, they came on into the bar--

'Q. Came into the where?

'A. They came through the bar. We have a bar that separates the living room from the kitchen. It is one big long room.

'Q. I see. Where did they go?

'A. Well, they came into the living room there and from that they wanted clothing and they wanted the car keys and tried to get away and they jerked the telephone out of the wall--

'Q. Well, what did he do when he got off the phone?

'A. Well, he put the shotgun--he threw the shotgun on us and told us to sit down and give them time to get away and so then my daughter was behind me and I grabbed her--

'Q. Well, let me ask you a few questions right there on that point. Which one of them had the shotgun?

'A. Allen.

'Q. Allen was the one who was on the telephone.

'A. Yes.

'Q. Did he point the shotgun at you?

'A. Yes, sir.

'Q. Did he point it at your mother?

'A. Yes.

'Q. Did he point it at anybody else in the room?

'A. Yes, my daughter was there.

'Q. All right. Was he the spokesman for the crowd?

'A. This one and Myers did most of the talking.

'Q. And this one was just standing around?

'A. Well, he kept insisting that they were losing too much time.

'Q. This defendant right here?

'A. Yes.

'Q. All right. After they put the shotgun on you you said that they demanded something. What was that, please?

'A. Well, they demanded the car keys. Myers picked up the car keys off the bar there.

'Q. What heppened when they got ready to leave?

'A. When they got ready to leave, Myers went and got in the car and backed it up. This one her stood in the doorway and Allen held the shotgun on us and told us to give them five minutes to get away. He said that they needed five minutes.

'Q. Now, how did they make their exit?

'A. Well, in turn, whenever he backed the car up, then they all ran for it.

'Q. Myers and Fuller went out together.

'A. Well, yes. They went out.

'Q. Do you recall who backed up in the automobile?

'A. Myers, I believe. He took the keys and as I recall, Mr. Fuller stood in the doorway and Allen held the shotgun on us. That is the way they exited out.

'Q. Do you recall this man saying, 'Let's get out of here.'

'A. 'Let's get out of here. We are wasting too much time.'

'Q. To the best of your recollection, is that all he said?

'A. That's all I remember.'

According to the testimony of Mrs. Betty Morgan, Joe Myers took the keys to the automobile and also took the blouses from her and handed one to appellant.

Appellant left the house with Myers and Allen, got in the automobile with them and 'lay down' in the front seat. Joe Myers drove the automobile and J. W. Allen was in the back seat. Appellant testified:

'When I first went in the house the way it looked--the doors wasn't locked or nothing and the lady never told me to get out and there was no words passed, and when I walked in the house actually I figured that maybe the lady knew them and that they were friends of hers or something and they were discussing this car and when Joe backed the car up I went out and jumped in the front seat * * *'

Within minutes after leaving the house, the three prisoners were seen by a policeman. They were then chased by several policemen upon whom the prisoners opened fire and after which the policemen returned the fire. The prisoners were recaptured within a few miles of the house they left.

City Policeman Till was at the scene of the recapture and on cross-examination he testified that he could not remember whether or not appellant had on a woman's blouse. A group newspaper picture, which included the appellant and was made shortly after the apprehension, was introduced by appellant for the purpose of showing that appellant was not wearing a woman's blouse.

John W. Allen, one of the prisoners, testified, in part, as follows:

'Q. After you saw the defendant in the woods, when was the next time you saw him?

'A. He came in the house after I had already gone in, maybe ten minutes.

'Q. You had been in the house about ten minutes.

'A. That's right.

'Q. Did anybody come into the house with you or with him?

'A. No. He came in alone.

'Q. Was there another fellow already in the house?

'A. That's right.

'Q. What was his name?

'A. Joe Myers.

Joe Myers then testified in part as follows:

'Q. Is this where the escape took place?

'A. Yeah. That's where we left.

'Q. Did you take off with this defendant here?

'A. No.

'Q. After you had run and you went to Mrs. Morgan's house, when did you next see the defendant here?

'A. Well, J. W. went up to this first house and knocked on the door and he left that house and he went to another house to this Mrs. Morgan's house and when he got there he went inside the house and I was getting ready to leave the patch. I was behind the corn and when I got ready to leave the patch Gail walked up and he asked me, he said, 'What are you doing, man?' I told him that I was going to meet J. W.

'Q. Did you hear this defendant say anything during the time that he was there in the house?

'A. Yeah. The only thing he said though was, let's get out of here, or we are wasting time, or something or other.

'Q. Did he say anything to those ladies in that house?

'A. No.'

There was evidence that appellant was present at the time and place the offense was committed; that appellant made the statement, 'Let's get out of here', which could reasonably be construed as proof of his encouraging the other two prisoners to commit the offense and could equally be construed as a meeting of the minds of appellant and the other two prisoners to commit the offense in concert; that appellant attempted to make full use of the stolen car in his effort to escape; and that he was present adding numerical strength to the 'gang' when the automobile keys were forcibly taken. Also there is testimony that appellant took from Joe Myers one of the blouses. One who is present, encouraging, abetting, or assisting the active perpetrator in the commission of the offense is a guilty participant. This guilty participation need not be proved by positive testimony, and rarely is. The jury are to determine its existence from the facts in the case. West v. State, 25 Ala.App. 492, 149 So. 354. In the case at bar common enterprise or adventure engaged in by the three prisoners was to gain their freedom from Kilby Prison. To do this, they committed the high crime of robbery. It is sufficient if the common enterprise or adventure was entered into on the spur of the moment. Layne v. State, 32 Ala.App. 34, 21 So.2d 553.

The conflict in the evidence presents a...