McColston v. State

• Decision Date: 07 April 1925
• Docket Number: 6 Div. 520
• Citation: 20 Ala.App. 591,104 So. 347
• Parties: McCOLSTON v. STATE.
• Court: Alabama Court of Appeals

104 So. 347

20 Ala.App. 591

McCOLSTON v. STATE.

6 Div. 520

Court of Appeals of Alabama

April 7, 1925

Rehearing Denied May 12, 1925

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

S.B McColston, alias Mack Colston, was convicted of robbery, and he appeals. Affirmed.

Mathews & Mathews, of Bessemer, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

From a judgment of conviction for robbery, and a sentence of 10 years' imprisonment in the penitentiary, defendant appealed.

The controlling question here presented is that of the identity of this appellant, as being one of the three men, who perpetrated the crime complained of in the indictment. Upon this question the state introduced three witnesses whose testimony, upon this trial, tended to identify this appellant in this connection. It may be, as contended by defendant that the testimony given by the state witnesses upon this trial conflicts in some material respects with the evidence given by them upon a former trial. It may also be true that discrepancies and contradictions are apparent, but it cannot be seriously insisted that the evidence was insufficient to be submitted to the jury for its consideration, and that it was the prerogative of the jury, and not the court, to pass upon the weight and credibility to be accorded to the evidence. On the important question of the identity of this defendant as being a participant in the crime, we note from this record that A.G. Jones, the alleged injured party, testified:

"They had their guns on me when they took me out of the wagon. I know this defendant here; he was one of them; I recognized his voice and size. I had been knowing him ever since I been going to Westfield, ever since July."

And on redirect examination he testified:

"From July up until that time I had seen Colston often. I just got to know him, got acquainted with him, seeing him you know, regularly buying stationery from me, and trading with me. I had been seeing him until just a few days before that happened."

State witness Ezra Jones on this question testified:

"I know S.B. Colston, I recognized his voice and his size, this defendant here. He was one of them. They had three guns, pistols. They threw them on him, on my brother A.C. Jones. *** I recognized this defendant; he is one of them."

W.A. Hale, state witness, testified:

"I know this defendant, Colston, and have been knowing him for a year. Well they--this fellow here and two others--was pulling this fellow Jones from the truck, pulling him out. This defendant was one of the men that was pulling him out."

It can be seen from the above-quoted testimony, and other like import, that the evidence tended strongly towards identifying the defendant as being one of the perpetrators of the alleged crime. There was no dispute or conflict on the trial of this case that the offense complained of had been committed by some one.

The defendant contended that he took no part whatever in the robbery, and insisted that he was in the city of Birmingham, which was far removed from the scene of the crime, at the time of its commission. He testified to this fact himself and offered the testimony of other witnesses whose testimony tended to support his alibi. This material conflict was a question for the jury to determine. On the trial of this case, several exceptions were reserved to the rulings of the court upon the testimony. However, as no error of a reversible nature appears in any of these rulings, a discussion thereof need not be indulged.

The record discloses that the solicitor, in his argument to the jury in this case, stated: "He is guilty of the crime of highway robbery."

There was objection to this statement and motion was made to exclude it, but the court overruled the defendant's objection, and also motion to exclude, whereupon the defendant duly reserved an exception. The emphatic statement here complained of would certainly have been improper, if made by the court, or even if the court had given an intimation to this effect. Attention is directed to the case of Rowe v. State (Ala.App.) 101 So. 91, 92, and especially to the quotation...