Holcomb v. State
| Decision Date | 21 November 1967 |
| Docket Number | 8 Div. 135 |
| Citation | 44 Ala.App. 259,207 So.2d 119 |
| Parties | v. STATE. |
| Court | Alabama Court of Appeals |
Martinson, Manning & Martinson, Huntsville, for appellant.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
This is an appeal from the Circuit Court of Madison County, Alabama, denying appellant's petition for release from custody on a writ of habeas corpus.
Appellant is charged with the crime of 'Robbery by Intimidation' under a Georgia statute, and he was arrested by the Sheriff of Madison County, Alabama, upon a duly certified and authenticated interstate rendition warrant issued by the Governor of Alabama. Attached thereto is a requisition, duly authorized and authenticated, of the Governor of Georgia; an authenticated copy of a grand jury indictment against appellant by the grand jury of DeKalb County, Georgia; and affidavits of Mrs. Mary Kisling, employee of the grocery store allegedly robbed, and Mr. Donald Carpenter, manager of said grocery store. Both affidavits identified appellant from a photograph as the individual who robbed their store. There was also attached a sworn certificate acknowledging that the persons who signed the attached papers were actually Richard Bell, Solicitor General of Stone Mountain Judicial Circuit (Georgia) and William T. Dean, Judge of Superior Court, Stone Mountain Circuit (Georgia). No attack was made on the validity of the extradition papers, and we observe that these papers were legally sufficient.
Appellant presented the testimony of his mother, his sister, eight witnesses and testified in his own behalf. He relied on these witnesses to attempt to prove that he was not a fugitive from justice.
Mr. Louis Swinea testified that he was shop foreman of Curry Motor Co. in Huntsville, Alabama; that he knew appellant by having worked on his car; that he saw appellant on the date of the robbery, December 12, 1966, at 8:00 A.M., just before noon and again between 4:30 and 5:00 P.M. At that time appellant had his car in the shop because of an oil leak. An invoice of this occurrence was attached to the record as petitioner's Exhibit No. 2.
Mrs. Ann Cagle testified on behalf of appellant that she lives in the trailer park operated by appellant and his mother; that she has known appellant for about two years; that she spoke with him on December 12, 1966, 'between 4:00 and 5:00 o'clock'; that she remembered the date because that was the day she changed jobs; that she saw appellant 'in the office' at the trailer park; and that she spoke with him about her change of jobs. Mrs. Cagle also stated that she did not know of any periods in December of 1966 when appellant was not working on the lot; that she was related to appellant by marriage (a cousin); and that she had voluntarily gone to appellant's mother to state that she had seen appellant on December 12, 1966.
Mr. Lee Cagle, second cousin of appellant, testified that he saw appellant on December 12, 1966, at 10:00 A.M. and between 4:00 and 5:00 P.M.; that he and appellant tried to light a heater in the utility room at the trailer park in the morning; and that he saw appellant in his office talking with his (the witnesses') wife that afternoon.
Mr. Tipton L. Bell testified that he and his brother operated Bell Brothers Shell Service Station; that he had associated with appellant on a 'social and business' basis; and that he (the witness) kept a record of purchases made at his station by a ticket and ledger. Tickets for gasoline allegedly purchased by appellant for December, 1966 were offered into evidence as Petitioner's Exhibit No. 4, and a ticket dated December 13, 1966, showed a purchase of eighteen gallons of gasoline.
Mr. James Patterson testified that he saw appellant on December 12, 1966, at his (the witnesses') trailer, at about 6:40 P.M.; that appellant brought to the witness a letter from a man to whom the witness had sold a trailer; that he saw appellant at 8:00 P.M. on December 12, 1966, when he (the witness) asked for the address of the man who had written the letter received by the witness earlier. Mr. Patterson stated that he knew of no time during December, 1966, when appellant was away.
Mrs. Jean McAllister testified that she saw appellant on the trailer lot at 'about 9:00 or 9:30 A.M. on December 12, 1966, where she had a conversation with him about her station wagon. The reason she can be positive as to the date was because she had to pay off a claim for damage done when someone hit her car.
Mr. James Johnson testified that he saw appellant at about 9:30 A.M. on December 12, 1966, and borrowed some money from him at that time. Mrs. W. E. Hodges testified that she saw appellant on December 12 between 1:00 and 1:30 P.M. in the trailer park office.
Mrs. Elaine Parker, sister of appellant, testified that she saw him between 8:00 and 8:15 A.M., again at noon, and again at about 3:00 or 3:30 P.M.
Appellant's mother, Mrs. Mamie Holcomb, testified that she spoke with appellant on Monday, December 12, 1966, concerning non-payment of rent by Mr. Robert Hill. Having found the rent had been paid, Mrs. Holcomb signed a check dated December 12 reimbursing Mr. Hill.
On cross-examination, Mrs. Holcomb stated that she had not solicited any testimony from the witnesses. Testimony was also elicited that appellant had been in the Federal Correction Institute in Tallahassee, Florida, and in a Federal Prison in Montgomery, Alabama.
Testifying in his own behalf, appellant stated that he not only had not been in Atlanta on December 12, 1966, but had not been in the State of Georgia on that date. He corroborated the testimony of the witness who had testified in his behalf. He also stated on cross-examination that he knew James Davis, alias James Depelno, and had been arrested with him in Nashville in March but said he did not know that Davis was 'already in the state penitentiary in Atlanta, Georgia for the offense of robbing this store in Georgia.'
Mr. Donald Carpenter testified for the...
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