Hill v. State, 6 Div. 912
| Decision Date | 09 March 1976 |
| Docket Number | 6 Div. 912 |
| Citation | 328 So.2d 644,57 Ala.App. 394 |
| Parties | Willie James HILL v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Louis W. Scholl, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for the State.
Appellant was convicted of robbery and sentenced to imprisonment in the penitentiary for twenty-one years.
In the late afternoon of July 20, 1974, a lady, accompanied by her mother, her husband and a neighbor, was walking through Woodrow Wilson Park in Birmingham on their way to a wrestling match at the Municipal Auditorium. She testified she saw defendant, whom she did not then know but positively identified afterwards to officers and on the trial, sitting on a park bench with another man and facing and talking with a third man sitting on another bench. She said she saw defendant hit the third man; that defendant struck him twice and knocked him off the bench. She said she saw defendant pull something out of the pockets of the third man, who was afterwards identified as Clayton Edward Mills, an elderly man, named in the indictment as the victim of the robbery.
Both Mr. Mills and defendant testified. Mr. Mills testified that he had eaten dinner in a nearby hotel, gone to the park and had dozed off to sleep. He said he had had two beers with his meal. The next thing he remembered was that a man had his hand on Mr. Mills' billfold which was still in the pocket of his pants. They struggled for the billfold, but the man succeeded in pulling the hip pocket off his pants, billfold and all, and struck Mr. Mills in the back of the head, and Mr. Mills then lost consciousness. He stated that at the time of the incident he had sixty-five dollars in his possession, located in his wallet, that sometime after the incident the wallet was returned to him but the money was not in it. He denied knowing defendant prior to the incident.
Defendant testified that he had purchased a quart of wine and had gone with an acquaintance, a man by the name of Hudson, to the park to drink and reminisce; that Mills called them over and asked to join them and share the wine, promising to buy the second bottle. The wine was finished by the three; Mills refused to buy the second bottle. Defendant said he then became mad and struck Mills but denied taking his wallet or any money belonging to him. Defendant and Hudson left the park promptly, went to a nearby restaurant but did not remain there but a few minutes, and in a few minutes thereafter they were arrested.
If defendant was telling the truth there was no robbery, although there was an assault and battery committed by him, which is a lesser included offense. Taylor v. State, 48 Ala.App. 443, 265 So.2d 886. The testimony of the State, including particularly testimony of the victim and that of a disinterested witness viewing the incident, was sufficient upon which to base a conviction of robbery. This is true, we think, even though when defendant was arrested, he had on him only three dollars in currency and some change. The disinterested witness testified:
'After Mr. Hill hit Mr. Mills he got the man's wallet and he got the man's wallet and start fishing around in his wallet and threw the cards and papers on the ground and after that . . . both of them then walked down the steps over here by the statue by seventh avenue and after they got off the bench they did something after they got on seventh avenue but I couldn't find out what they were doing.'
That defendant was intoxicated is undisputed, but the extent of his intoxication is not clear. A testifying officer, upon being asked, said that defendant was moderately intoxicated.
Appellant now takes exception to a portion of the court's oral charge as follows:
'The basic principle of law involved concerning voluntary drunkenness is that it is not a defense to a specific crime unless the drunkenness is at such a degree that it would cause a derangement of the mind to such an extent that a person could not formulate the specific intent that is necessary to commit the offense.'
In criticizing the quoted portion of the court's oral charge, appellant underscores 'it would cause a derangement of the mind,' thus indicating, it seems, a view that there does not have to be a mental derangement in order for one to be so drunk that he cannot have the requisite felonious intent to commit the crime of robbery.
Defendant pleaded not guilty. He did not include a plea of not guilty by reason of insanity. It may well be that in the absence of a plea of not guilty by reason of insanity it would be better that there also be an absence of any expression such as 'mental disease' or 'derangement of the mind,' but, in our opinion, no injury was caused defendant by the expression. Furthermore, no objection was made and no exception was taken to any portion of the court's oral charge. At the conclusion of it, both parties stated that they were 'Satisfied.' Any grievance defendant may have had as to the language of the court's oral charge should have been manifested there and then, not here or now. Passmore v. State, 47 Ala.App. 189, 252 So.2d 115; Duncan v. State, 46 Ala.App. 165, 239 So.2d 237; Sullivan v. State, 48 Ala.App. 347, 264 So.2d 576, cert. denied, 288 Ala. 756, 264 So.2d 580.
Defendant's counsel made numerous objections to portions of the opening and closing arguments of counsel for the State, and most of said objections were sustained by the trial court. Appellant now insists, 'The individual impact of each respective improper comment might be deemed possibly negligible, but the totality of them collectively was prejudicial to the defendant and precluded a fair and impartial consideration.' We repeat what was stated in Luschen v. State, 51 Ala.App. 255, 284 So.2d 282, 289:
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