Haggler v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: HARRIS
• Citation: Haggler v. State, 270 So.2d 690, 49 Ala.App. 259 (Ala. Crim. App. 1972)
• Decision Date: 05 December 1972
• Docket Number: 6 Div. 384
• Parties: David HAGGLER, alias v. STATE.

Page 690

270 So.2d 690

49 Ala.App. 259

David HAGGLER, alias v. STATE.

6 Div. 384.

Court of Criminal Appeals of Alabama.

Dec. 5, 1972.

Jasper B. Roberts, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and William G. McKnight, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted in the Circuit Court of Cullman County for the offense of assault with intent to rob and his sentence was fixed at imprisonment in the penitentiary for a term of eight (8) years. He had a court-appointed lawyer to represent him in the court below. He is here with a free transcript and a court-appointed lawyer.

On March 6, 1971, at about 8:15 P.M., three employees of Brunos Grocery Store in Cullman, Danny Webb, Don Glover, and William Griffin, drove to the Parker Bank in that city to make a night deposit for the store. Griffin, the store manager, drove the automobile. Webb had possession of the locked money sack containing around twenty-five hundred dollars ($2500.00) in money and checks. He rode on the front seat next to the door on the passenger's side and Glover occupied the middle space on the front seat between Webb and Griffin. Upon arriving at the bank, Griffin drove the car upon the sidewalk near the bank's night deposit box but far enough away so that Webb's door would not hit the building when Webb opened the door to make the deposit. Webb got out of the car, dropped the money sack in the depository and, while waiting to see if the sack went down satisfactory, a man came up to him with a pistol pointed at Webb's stomach and mumbled something like 'back up.' At this point, the gunman was directly in front of Webb and about two feet from him. Webb testified that he had never seen the gunman before, but he wore a toboggan pulled down 'just above his eyes.' Lights were on in and around the bank. Webb further testified that the gunman's clothes were dark in color. At about this time another gunman approached the automobile on the driver's side with a pistol in his hand. Griffin, who still had his automobile motor running, accelerated or gunned the motor and struck the gunman with such force that he was knocked on the hood of the car and he immediately opened fire and shot three or four times toward the windshield of the car before he fell off the hood and ran from the scene. One bullet struck a windshield wiper and Griffin and Glover ducked down on the front seat and the car went out of control and struck the curb of the street. During this shooting, the gunman who first accosted Webb also fled.

Webb made a positive in-court identification of the defendant at trial. Griffin and Glover did not and could not identify appellant as the gunman who had pointed the pistol at Webb's stomach during the attempted hold up. No doubt their attention was diverted by the approach of the second gunman and the fire works which followed.

A few days later, appellant was arrested in Huntsville, Alabama, and carried to the county jail in Collman. His picture appeared in the Cullman Times. Webb testified that he saw the picture in the paper prior to going to the jail to view appellant. At the sheriff's office, Webb identified appellant as the man who attempted to rob him on the night of March 6, 1971. Previously the police officers had shown Webb some 'pictures', but the record is not clear whether appellant's photograph was among the 'pictures' shown him. Appellant was not placed in a 'line-up'.

From the record:

'Q. (BY MR. JULIAN BLAND:) When you saw him in jail or down here at the jail or wherever it was, the sheriff's office, is that the first time you had seen him since you saw him on the corner up there at the bank?

'A. Yes, sir.

'Q. Did you recognize him at that time?

'A. Yes, sir.

'Q. (BY MR. JULIAN BLAND:) Is this the man, this man right here, that is sitting in the courtroom at this time, that was within two feet of you on that night with the gun on you after you put the money in the bank?

'A. Yes, sir, that is him.

'Q. That is him?

'A. Yes, sir.'

For the defense, appellant and his witnesses proved an alibi. The tendencies of the alibi evidence showed that at the time of the occurrence, made the basis of the indictment and conviction, appellant was working at the B and B Restaurant in Huntsville; that he worked seven days a week and his hours of employment were from nine o'clock a.m. until nine-thirty or ten at night. He had been employed at this restaurant for about two months prior to March 6, 1971, the date of the attempted robbery which date was on a Saturday. According to the testimony of Mrs. Baites, co-owner of the restaurant with her husband, appellant had never missed working on a Saturday night and that he worked on March 6, 1971, until around nine-thirty or ten o'clock p.m. Mr. Baites did not testify. On cross-examination, Mrs. Baites testified that appellant worked the following day (Sunday), but she had no recollection that he worked at all during the following week; that she and her husband made out the payroll, but she could not recall appellant working after Sunday, March 7, 1971, though he worked everyday until he was arrested.

Appellant's wife corroborated this testimony. She stated she went to the restaurant on Saturday night, March 6, 1971, for a soft drink and left her husband at work about five or ten minutes after nine; that her husband arrived home that night around eleven o'clock.

Appellant testified that he was twenty-four years of age and had lived in Huntsville about eight years; that he had never been to the City of Cullman prior to the time the sheriff's deputies arrested him; that he was employed by the B and B Restaurant in Huntsville for two months prior to March 6, 1971, and worked there seven days a week; that he could...