Harris v. State

• Decision Date: 05 March 1968
• Docket Number: 4 Div. 638
• Citation: 212 So.2d 695,44 Ala.App. 449
• Parties: McArthur HARRIS v. STATE.
• Court: Alabama Court of Appeals

Page 695

212 So.2d 695

44 Ala.App. 449

McArthur HARRIS v. STATE.

4 Div. 638.

Court of Appeals of Alabama.

March 5, 1968.

Rehearing Denied May 21, 1968.

Albert F. Simpson, Eufaula, for appellant.

MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.

CATES, Judge.

Indictment, robbery; verdict, guilty; sentence, fifteen years in the penitentiary. This is a companion case to Bowman v. State, Ala.App., 208 So.2d 241 (1968).

The State's proof tended thus: December 6, 1966, Harris and others drove up to a store in Eufaula. Harris and Bowman walked in and after picking out some merchandise pulled a pistol on the clerk in charge, Gerald Bennett, and ordered him into a cooler. The cash register was left open.

Two minutes later a juvenile customer came in the store. Bennett seemingly concluded that the defendant had gone. When Bennett came out, 'there was--from what I could notice--a few pennies and just scattered small change.' Bennett recalled 'certain money' having been in the register before his being forced into the cooler. Mr. Childree, the manager, came and 'inventoried' the cash register.

First, appellant challenges the constitutional validity of Code 1940, T. 15, § 237, ¹ and as to the omission in the accusation of the time (and place) of the alleged offense.

Second, we are asked to review several rulings below allowing, over objection, Childree to testify as to his inventorying the cash register after the robbery. The questions culminated in an answer that the till was $119.50 short.

Third, a prosecution witness, Elizabeth Ballard, appellant's female companion, had a poor memory as to exact date of Harris's robbing Bennett. During her testimony, several objections were overruled:

'Q What happened in Eufaula?

'MR. SIMPSON: Object to any testimony as to what happened in Eufaula unless it is shown what day it happened on.

'COURT: See if you can get the date a little bit closer.

'MR. LeMAISTRE: I don't think she knows the date, Your Honor, but I will ask her.

'Q Did you ever come through Eufaula more than once with him?

'A I don't know.

'Q You know whether you did or you didn't. Did you ever come to Eufaula more than one time with Johnny and--

'A No sir this is my first time being in Eufaula.

'Q That was the time you came with--

'MR. SIMPSON: If it pleases Your Honor the Solicitor is leading his witness.

'MR. LeMAISTRE: You didn't give me much time to lead. I hadn't even started the question good.

'COURT: State your question.

'Q The one time you talk about was the time that you were with Johnny Bowman and McArthur Harris and what is the other one?

'A Margaret Ann Bowman.

'Q Is it or is it not?

'MR. SIMPSON: Elizabeth, when I start to object you wait until I get through. I object now on the grounds that the Solicitor is leading the witness, Your Honor, and further that she is answering in the middle of his questions which makes it extremely difficult for me to get in an objection before her answer and I wish you would admonish her not to do that.

'COURT: Wait until the question is asked then if he objects to it wait until I say something before you answer. I might tell you not to answer and I might tell you to answer. So, if he says anything right after he asked you a question you just be quiet. I overrule your objection on this.

'Q Was that the time that you talk about is all I am asking you. Was that the time you came to Eufaula?

'A Yes sir.

'Q Was that in December of 1966?

'A I know it was in '66 but I don't know what date.

'Q Did anything happen in Eufaula?

'MR. SIMPSON: Your Honor, object to this question on the grounds that the witness has testified she doesn't know when she was here and I don't believe we are put to the burden of defending against any time she may have happened to have been in town. We are talking about one day.

'COURT: Overrule.

'MR. SIMPSON: Like an exception.

'Q Do you know the Quik Mart store in Eufaula when you see it?

'A Do I know it when I see it. Yes sir I know it when I see it. I know the store we went to.

'Q Did you and McArthur Harris and Johnny Bowman and the other girl stop at the Qwik Mart store?

'MR. SIMPSON: Object on the grounds it is not shown when they stopped at the Qwik Mart store.

'COURT: Overrule. You can answer the question. Did you all stop at the Qwik Mart store?

'A Yes sir we stopped there at the store because they asked us what we wanted to eat.

'MR. SIMPSON: Just answer what Mr. LeMaistre asked you.

'A Yes sir we stopped at the store.'

Fourth and Fifth, appellant raises the same specification as to the lack of connection in point of time as to appellant's actions as described by this witness.

Sixth, appellant argues that since the victim could not see the cash register, the proof of money being taken came only from insufficient circumstantial evidence (see Second) the State failed to establish asportation a necessary ingredient of robbery.

Seventh, error is claimed to reside in sustaining the District Attorney's argument, objection to which was made thus:

'MR. SIMPSON: We object to the statement of the District Attorney in closing that the defendant proceed to clean out the cash register on the grounds that there is no testimony which shows that this defendant proceeded to clean out the cash register nor is there any testimony from which an infrance (sic) to that effect could be drawn.

'COURT: Overrule.'

Eighth, appellant orally requested that the trial judge charge the jury as to lesser offenses (though without specification).

Ninth, a claim of error is laid in the undisputed evidence that title to the money taken was not in the victim.

I.

Title 15, § 237, supra, and § 259, form No. 95, ² represent statutory compression doing away with cases such as State v. Beckwith, 1 Stew. 318, and Roberts v. State, 19 Ala. 526.

Form 95, the Code annotation notes, has been expressly approved at least twice by our Supreme Court in Thomas v. State, 91 Ala. 34, 9 So. 81, and Toliver v. State, 142 Ala. 3, 38 So. 801. In the opinions, these glosses are cryptic.

The appellant here complains that the reversal upheld in Gayden v. State, 262 Ala. 468, 80 So.2d 501, requires us to declare Form 95 to be violative of the due process clause of the Fourteenth Amendment and § 6 of the Alabama Constitution.

Since Mr. Justice Lawson, in Gayden, supra, did not concur in the opinion of Mr. Justice Simpson but only in the result, the effect of the Supreme Court's affirmance was to adopt Judge Carr's opinion in this court. ³ See Wheat v. State, 281 Ala. 287, 202 So.2d 73; Irwin v. State, 23 Ala.App. 284, 124 So. 408; Curry v. State, 25 Ala.App. 317, 146 So. 81; Willis v. Buchman, 30 Ala.App. 33, 199 So. 886 (after remandment).

However, we are clear to the conclusion that here we are not controlled by the Gayden opinions nor by the principle relied on to vitiate certain short form indictments in State v. Straughan, 229 La. 1036, 87 So.2d 523.

Time is not a material ingredient in a charge of robbery. Cf. Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284. Place is not a question of criminal pleading but proof. ⁴ Code 1940, T. 15, § 238; Circuit Court Rule 35; Payne v. State, 40 Ala.App. 493, 115 So.2d 670.

Obedience to the statutory directions to leave out of an indictment for robbery any detail of time other than 'before the finding of this indictment' ⁵ does not deny the accused due process of law. Caldwell v. State of Texas, 137 U.S. 692, 11 S.Ct. 224, 34 L.Ed. 816.

II.

Larceny enforced by violence or threats is robbery. However, it is without degrees based on value: there is no petty robbery. In Wilson v. State, 268 Ala. 86, 105 So.2d 66, it was pointed out that in robbery the amount of money taken is immaterial.

Viewed from this rule, the testimony of Bennett that 'certain money' had been in the till, coupled with the circumstance of there being a trifling amount afterwards, made out a prima facie proof of value being taken. Thus, even if we were to consider that the trial court erred in receiving Childree's evidence as to his 'inventorying' the cash register, nevertheless Supreme Court Rule 45 would keep us from treating it as reversible. Therefore, from the appellate point of view the question is academic.

In this connection, though the State did not prove the precise moment of asportation, we consider that the entire 'two minutes' during which Bennett was away from the cash register accorded the defendant or Bowman an opportunity to get the money. ⁶ Certainly the threats preceded the disappearance of the money. See Cobern v. State, 273 Ala. 547, 142 So.2d 869 (hns. 2 and 4).

We hold that the State established a prima facie case of the taking of something of value to meet the allegation.

III., IV., and V.

The testimony of Elizabeth Ballard quoted above reveals no ground of error in the court's ruling. McElroy, Evid. (2d Ed.), § 115.01(1)--'The law does not require absolute or positive knowledge or perfect recollection in a witness.'

VI.

See II above.

VII.

Sometimes it is claimed that it is impermissible to rest one inference upon another. Contra: McElroy, Evid. (2d Ed.), § 21.01(9). However, the above quoted objection to the District Attorney's argument was not well taken, even though Bennett was not an eyewitness to the taking of the money. See II above, particularly footnote 6 as to Elizabeth Ballard's testimony as to Bowman having 'the money.'

VIII.

We find no request in writing for a charge as to the indictment including any lesser offenses. Code 1940, T. 7, § 273, precludes us from reviewing a motion for a charge which is presented only orally to the judge.

IX.

Title to property taken is not required to be alleged and proved in robbery. Ownership, which may be special property, is enough if the object § taken from the person of the victim. Montgomery v. State 169 Ala. 12, 53 So. 991, where the opinion refers to 'undisputed possession and control of the property.' Riggens v. State, Ala.App., 207 So.2d 141 (Ms., Jan....