Johnson v. State, 4 Div. 883.

• Decision Date: 07 August 1945
• Docket Number: 4 Div. 883.
• Citation: 24 So.2d 228,32 Ala.App. 217
• Parties: JOHNSON v. STATE.
• Court: Alabama Court of Appeals

24 So.2d 228

32 Ala.App. 217

JOHNSON v. STATE.

4 Div. 883.

Alabama Court of Appeals

August 7, 1945

Rehearing Denied Oct. 30, 1945.

O S. Lewis, of Dothan, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Chas. M. Cooper, Asst Atty. Gen., for the State.

BRICKEN, Presiding Judge.

Originally as presented and filed, the indictment in this case contained three counts. Count two thereof was exactly the same as count one, and the court charged count two out, leaving counts one and three, upon which the defendant was put to trial.

Count 1 charged the offense of robbery, and was (omitting caption, etc.) in words and figures as follows: 'The Grand Jury of said County charge that, before the finding of this Indictment Dan Johnson, whose name is to the grand jury otherwise unknown, feloniously took one Ford automobile, of the value of $1,000.00, the property of L. Y. Toler, from his person or in his presence, and against his will, by violence to his person or by putting him in such fear as unwillingly to part with the same.'

Count 3 charged grand larceny and reads as follows: 'The grand jury of said county further charge that, before the finding of this indictment, Dan Johnson, whose name is to the grand jury otherwise unknown, feloniously took and carried away one Ford automobile, of the value of $1,000.00, the personal property of L. Y. Toler, against the peace and dignity of the State of Alabama.'

The trial resulted in the conviction of defendant under said count 3 whereupon, as the law required, the defendant was adjudged guilty of the offense of grand larceny, and the court sentenced him to imprisonment in the penitentiary for a period of five years. Judgment of conviction was accordingly pronounced and entered, from which this appeal was taken.

The record discloses that Dan Johson, the defendant, a white man, was 28 years of age at the time of his trial. Also that he is married to the niece of Mr. Toler, the alleged injured party, and with his wife and children lived in a house belonging to Toler, in close proximity to Mr. Toler's home. That he served in the United States Army for about ten years and had been recently discharged from the army on account of his physical condition. That he suffered extreme pain in his back due to arthritis, and very nervous condition generally. That the Army Surgeon prescribed and furnished him with capsules to alleviate or palliate the pains and that on the day in question he had taken several of these capsules, and in addition thereto, after midday, he had consumed a pint or more of whiskey. Defendant testified as a result of the foregoing his mind was a perfect blank and that he had no recollection whatever of having committed the act complained of or of any of the facts or circumstances in connection therewith. That he never regained consciousness until he found himself in jail that night after the whole thing was over.

The facts as to the taking of the car are without dispute. The testimony shows that Mr. Toler's Ford car was parked in front of his house and he, Toler, was asked this question:

'Q. Now, tell what Dan Johnson did there on that occasion and at that place. A. I was standing near my store by the side of the road talking to his brother and he came walking around from the front yard from my place and my automobile was standing in front of the house and he walked directly towards the car and his brother, he hemarked he was going to my car, and I walked out hurriedly, in fact I trotted part of the way to get to the car, and when I got to the automobile he was seated in the car under the steering wheel and had reached down like that (indicating) like he was trying to switch it on, and the key was in the car, and I asked him not to drive it away and he commenced cursing me. His brother was standing across the road over there near the store and I called him to come over there, and he came over, and when we walked up about like from here to the wall over that Dan looked at him and said, You are my brother, you think I won't kill you? And his brother stopped there and I turned and walked away from the automobile back to my place of business, and he cranked up the car and left with it immediately, just as quick as I walked back to the store, and his brother told me to call the law.'

Appellant's counsel is correct in the insistence that 'The evidence is also without dispute that the defendant brought the car back in about one hour and a half, and parked it near where he got it, and parked it in front of the dwelling of L. Y Toler, the owner of the car. No one brought him back. No one arrested him, the car was voluntarily brought back and parked as stated. All of this was done in broad...