Nevill v. State
| Decision Date | 13 February 1902 |
| Citation | 133 Ala. 99,32 So. 596 |
| Parties | NEVILL v. STATE. [1] |
| Court | Alabama Supreme Court |
Appeal from circuit court, Morgan county; O. Kyle, Judge.
Tom Nevill was convicted of the crime of robbery, and appeals. Affirmed.
The appellant, Tom Nevill, was jointly indicted with Austin Griffin for robbery, and was convicted, and sentenced to the penitentiary for 10 years. The indictment contained three counts. The first count of the indictment was as follows "(1) The grand jury of said county charge that, before the finding of this indictment, that Austin Griffin and Tom Nevill feloniously took thirty cents in specie coin of the United States, consisting of one piece of the denomination of twenty-five cents and one piece of the denomination of five cents, the personal property of A. J. Widner, from his person and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the state of Alabama." The second count was the same as the first except that in said count the property alleged to have been feloniously taken was described as "a bunch of keys of the value of one dollar." The third count was the same as the first, except that the property alleged to have been feloniously taken was described as "a knife of the value of seventy-five cents." The appellant in the present case, Tom Nevill, demanded a severance, which was granted and he was tried alone. The defendant demurred to the first count of the complaint upon the following grounds: (1) It fails to aver that the 25-cent piece or the 5-cent piece was of copper, silver, gold, or other named metal; (2) that the description of the money was vague and indefinite, and that there is no averment as to the specie of coin; (3) that the kind of coin to which the 25-cent piece and the 5-cent piece belong is not alleged, nor is it alleged that it was unknown to the grand jury. To the second count of the indictment the defendant demurred upon the ground that it fails to aver the kind or character of keys constituting said bunch of keys. To the third count of the indictment the defendant demurred upon the ground that it fails to show the kind or character of knife, or that the same was unknown to the grand jury. Each of these demurrers was overruled. After the jury was organized, the defendant moved the court to require the state to elect upon which count of the indictment it would seek a conviction. This motion was overruled, and to this ruling the defendant duly excepted. A. J. Widner was introduced as a witness, and testified, substantially, that on Sunday night January 20, 1901 as he was going near the depot of the Southern Railway in Decatur, the defendant, Tom Nevill, met him, and ordered him to halt; that Austin Griffin walked up behind him and shoved a pistol in his face; that, while in this attitude, Griffin put his hand in his pocket, and took therefrom a 25-cent piece and a 5-cent piece of money, a bunch of keys worth $1, and a knife worth 75 cents. The defendant thereupon moved the court to require the state to elect as to which article taken from the witness it would seek a conviction. The court refused this motion, and to this action of the court the defendant duly excepted. The witness further testified that it was dark, and between 11 and 12 o'clock, but that he recognized the defendant, Nevill and Austin Griffin; that he gave up the money and articles through fear and intimidation caused by the action of the defendant and Austin Griffin. The defendant introduced testimony tending to show an alibi; that, at the time fixed by the witness Widner as the time of the commission of the offense charged, he (the defendant, Tom Nevill) and Austin Griffin were in another part of Decatur, and were not present at the place designated. The defendant, as a witness in his own behalf, testified that he did not see said Widner on the night testified to by him, and that he did not take or assist in taking from him any money, keys, knife, or other property. One of the witnesses for the state was introduced in rebuttal, and testified that between 10 and 11 o'clock she saw the defendant and Austin Griffin near the railroad station of the Southern Railway in Decatur. This witness was asked the following question: "Whether or not Austin Griffin had a pistol between 10 and 11 o'clock?" The defendant objected to the question because it called for irrelevant, immaterial, and illegal evidence, and because it had reference to a time different from that identified as the alleged hour at which the robbery was...
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