Gable v. State

Decision Date15 June 1943
Docket Number1 Div. 442.
Citation31 Ala.App. 280,15 So.2d 594
PartiesGABLE et al. v. STATE
CourtAlabama Court of Appeals

Rehearing Denied Oct. 5, 1943.

Appeal from Circuit Court, Baldwin County; F.W Hare, Judge.

Beddow Ray & Jones, of Birmingham, and Hybart & Chason, of Bay Minette, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Bernard F. Sykes, Asst Atty. Gen., for the State.

BRICKEN, Presiding Judge.

From a judgment of conviction for the offense of robbery, this appeal was taken.

The robbery, complained of in the indictment, was to the effect that the two above named appellants, together with one Glen Townes, and William Pritchett, feloniously took $1711 (properly described), the property of Reuben Augustus Eades from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, etc.

The indictment was proper in form and substance, and no objection by demurrer or otherwise was interposed.

The defendant, William Pritchett, demanded, and was granted, a severance. The three remaining defendants, in answer to the indictment, plead not guilty. The trial in the court below resulted in the conviction of Gable and Hutter, who were each sentenced to a term of imprisonment in the penitentiary of ten years. Defendant, Townes, upon said trial, was acquitted by the verdict of the jury, on the question of mistaken identity.

The evidence for the State made out the case in its every detail as charged. Eades, the alleged injured party, testified, among other things, that on June 12, 1941, at about one o'clock (day) he left Fairhope, his home, in a car accompanied by a young woman, Miss Patricia McFall, to go to Mobile, some miles distant. "After thus travelling for about a mile from the limits of Fairhope, someone pulled up to the side of me. When the car pulled up side of me, the first I noticed was I heard somebody say something, and I looked to the side and saw these three men with two of them out the window with guns. The car came up from behind like it was going to pass me. I heard the car and then I heard them say something. I heard them speak. That was the first thing that drew my attention. When I looked around I saw Gable hanging out the front window of the car with a pistol in his hand and Townes out the back window. I did not know either of these three defendants at the time. I did not know their names. I have since learned their names in connection with the preliminary hearing and seeing them. All three of these men were in that car at the time. Hutter was driving the car which was a Ford, 1941 Ford, two-door sedan. I say Mr. Hutter, the defendant there, was driving the car. Mr. Gable, the man back behind there, was sitting on the front seat by Mr. Hutter. Mr. Townes was on the back seat. No one besides those three men were in the car. They were telling me to stop and I did stop. When I stopped the car two of them, Gable and Townes, got out and came to my car. The two cars were stopped together and they immediately jumped out of their car and came to my car, and Townes got in the front seat of my car and Gable at the same time come over and they told me to 'lay your head in the girl's lap.' They had weapons with them when they got out of the car. The defendant Gable had a nickel plated pistol. Mr. Townes, the nearest one to me, had a blue or black looking gun--a blue or black dark gun. When they came over to me they had those guns out. The first thing said was Gable told me to lay my head in the girl's lap. After he said that Townes got in the front seat and Gable got in the back seat. Gable first ordered me to lay my head in the girl's lap. The car had four doors and the girl was sitting to my right, and Gable was the one that told me to put my head in her lap. I obeyed the order. They both got in the car practically at the same time and Townes drove the car off. Townes got in the car side of me and Gable on the back seat. At first immediately after they got in the car Gable reached over the seat and reached in my pocket and said, 'We are going to take your money.' And so he took the money out of my pocket. Mr. Gable reached from the back seat over and got my money and Townes was sitting in the car at that time. The car was standing still. I saw Mr. Gable with that pistol at that time. He had the one I called the shiny pistol drawn on me at that time. I did not part with the money willingly but I had to. I did not consent to him taking the money. $1711.00 was taken from me. The whole $1711.00 was in currency. He reached over the seat to get to me and he had his pistol drawn at that time. When they took the money Townes asked Gable, 'Are we going to take them somewhere or leave them here?' and he said, 'We will take them somewhere.' He started the car and drove the car down the road something like a mile or maybe a little further, I don't know exactly how far, and they first started to pull off the road to the right and so he drove the car off the road, and Gable on the back seat said to him: 'Don't go up there, there's a house up there.' And he backs the car out on the highway and goes down the road about 150 feet and turned to the left. The road he turned off on was just a side road and it went towards the bay. We went down that road, I imagine, something over a quarter of a mile. When we got down there, Gable asked me if I had another key to the car with me and I said, 'No, I have another one at home,' and he said, 'Well, do you have a pistol,' or I believe he said, 'Do you have a gun?' and I said no, and he said, 'Do you have a watch?' And I said yes, and he said, 'What time is it?' and I said '17 minutes after one,' and he said, 'Stay here for twenty minutes and you can leave and you will find your keys on the highway.' And so he took the key from out of the car and they left and evidently went back to the highway. They left walking; I might say trotting. They left hurriedly on foot. I couldn't see the other car. I think I heard the car when it started off on the highway but I couldn't see it. I had my head down inside the car. They told me to remain there twenty minutes and I stayed there twenty minutes. From there, I went back to Fairhope. I made a report of what happened immediately when I got back to Fairhope. I next saw these three defendants in Montgomery on Monday morning after the Thursday afternoon my money was taken. They were in jail at Montgomery. I observed all three of them there at that time. These are the three men that were present there, Glenn Townes, Charlie Hutter and Fred Gable, when they took my money. It happened in Baldwin County, Alabama, that place where I parted with my money. I identified these men there in Montgomery in the jail. I identified the three when I went to Montgomery after they were apprehended, and that was on Monday after this happened on Thursday."

The only other eyewitness to the alleged robbery who testified for the State was the above mentioned young woman, Miss McFall. Her testimony as to the robbery was practically identical with the above narrated testimony of Eades, the alleged injured party.

The foregoing testimony as to the actual robbery was without dispute or conflict. The defendant's contention was, and is, that the alleged robbery was committed by and with the consent of Eades, who had prearranged with defendants that a fake holdup be had. Appellant Hutter, being the only eyewitness for defendants, testified in detail as to this. Among other things, defendant Hutter testified: "I was present in Baldwin County, Alabama, on the 12th day of June 1941, when some money was taken off Mr. Eades; that was $1520.00. There was not five one hundred dollar bills in it; there were four one hundred dollar bills in there. * * * I had one of those one hundred dollar bills when I was arrested. I don't know whether or not Mr. Gable had one of those one hundred dollar bills in his possession at the time. I know I had one of the one hundred dollar bills that come off Mr. Eades' person. Mr. Gable and I had already divided up the money, we split even. I got $760.00 out of the deal. I don't remember now whether or not I got more than one of those one hundred dollar bills. It was all in currency. * * * I was in the car at the time the money was taken off Mr. Eades, and Mr. Gable was on the back seat. We all had guns. Mr. Gable had the nickel plated shiny gun."

From the foregoing respective insistences it is clearly apparent that the controlling and conclusive question in this case is one of fact for the jury to determine. As stated, the evidence for the State, if believed under the required rule, as to measure of proof, makes out the case in its every detail, and shows a clear and aggravated case of robbery.

If the contention of the defendants is the correct one, there could be no conviction of the offense of robbery, for in order to constitute that offense there must be not only a felonious taking of the property alleged, but such taking must be against the will of the person robbed, or by violence to his person, or putting him in such fear as unwillingly to part with the same.

Upon the trial in the court below, and here on appeal, these two defendants are represented by two of the ablest and most prominent firms of Attorneys in this State. Both firms have filed copious and elaborate briefs on appeal wherein it is insisted that upon the trial of this case, in the court below, numerous rulings of the trial judge constituted reversible error. These insistences are grouped under several distinct heads.

The first proposition presented relates to the following occurrence as shown by the record, viz.:

"The State closed. The defendant closed. The solicitor for the State, while arguing the case to the jury made...

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