Richardson v. State, 6 Div. 248.

• Decision Date: 30 June 1938
• Docket Number: 6 Div. 248.
• Citation: 186 So. 574,28 Ala.App. 432
• Parties: RICHARDSON v STATE.
• Court: Alabama Court of Appeals

186 So. 574

28 Ala.App. 432

RICHARDSON v STATE.

6 Div. 248.

Court of Appeals of Alabama

June 30, 1938

Rehearing Denied Oct. 4, 1938.

Reversed After Remandment Feb. 7, 1939.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Charlie Richardson was convicted of assault with intent to rob, and he appeals.

Reversed and remanded.

Certiorari granted by Supreme Court in Richardson v. State (6 Div. 399) 186 So. 580.

Bealle & Mize, of Tuscaloosa, for appellant.

A. A Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen for the State.

BRICKEN Presiding Judge.

The indictment charged the defendant with the offense of robbery; specifically, that he "feloniously took two five dollar bills, two one dollar bills, and one twenty dollar bill, lawful paper money of the United States of America, commonly called 'greenback,' of the value of Thirty-two & 00/100 ($32.00) dollars, the property of Will Richburg 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," etc.

Before entering upon the trial the defendant interposed a demurrer to the indictment based upon two separate and distinct grounds: (1) "Said indictment charges this defendant with no offense against the laws of the State of Alabama; (2) It is not alleged or shown that the money alleged to have been taken was lawful currency of the United States of America."

In our opinion the indictment was sufficient, hence there was no error in the action of the court in overruling the demurrer thereto.

The main witness for the State, and upon whose testimony the State relied principally for a conviction, was Will Richburg, the alleged injured party. The record shows that this witness was an aged negro, and that the defendant was of the same race, though many years younger. That on the day in question these two persons, known to each other for a long time, met in the City of Tuscaloosa, and went over into the "quarters," a negro settlement, and remained together for a considerable length of time, during which it is contended the alleged offense was committed. There appears no dispute in the evidence that these two parties finally had a difficulty, but a very divergent insistence upon the part of these participants as to the details of said difficulty is disclosed.

Richburg's statement as to the occurrence complained of was in substance that the defendant said "lets walk across over there in the quarters, and I just walked on and after we got over there we stayed a while, and I told him I believed I would go back to town, and he said wait a while, that he was going on back, and I said I was going now. We stayed there a while and kept arguing, and I said, I will go on, and started to walk and he struck at me and knocked out my teeth. When I come to myself I did not see him no more." He stated, that the money he claimed to have lost was in his pocket ten or fifteen minutes before then. He further stated: "I did not have my money when I got up; my handkerchief was on the ground; I have not seen my money since then. I looked on the ground and looked in all my pockets." On cross-examination he denied that he was drunk on that occasion, and stated, "I did not drink anything but a bottle of beer. I did not pull my money out in front of him. I missed my money when I come to myself." He also testified other persons were present at the time, and the closest person to him when he was hit was within a few feet of him, and stated he did not know who he was, and also, that he didn't know any of the rest of them at all. He stated, "There were not a lot of people there when I had the fight." He never testified that the defendant took his money, and no person connected with this case saw either of these parties with the money. The indictment which was found upon the testimony of this witness described the alleged missing money as being "two five dollar bills, two one dollar bills, and one twenty dollar bill." On the stand he testified that the money he had consisted of two ten dollar bills, two five dollar bills, and five one dollar bills. As will be noted there was a variance as to the description of the money in the indictment and in the testimony given by Richburg on the stand.

The testimony of the defendant and his numerous witnesses was in sharp conflict with practically every statement testified to by Richburg. All of them testified that Will Richburg was drunk and staggering, and some of them said the defendant was also drunk. The two police officers who testified for the State and who saw Richburg within a short time after the difficulty stated: Will Richburg had been drinking, and that they could smell it easily. The fight between the parties happened at the home of witness Will Harvel who saw the entire transaction. He testified, among other things, as follows:

"My name is Will Harvel, and I live at 401--20th Avenue. The defendant's sister lives over on 17th Street and 29th Avenue. I was living in the same house back some months ago when this man here and the defendant were there. My family and I live in one part of the house and the defendant's sister and her family lived in the other part. I remember the day the defendant and Will Richburg came there together. When they first came there, they came and knocked on the door and I was in my room, and I come to the door and told him (the defendant) his sister had not come from work. Both of them was together, and Red said, 'We will be back,' and they went up the street and after a while they come back, and they knocked on the door and I went to the door, and both of them was drunk, I would say they were drunk; and I said, 'You all is drunk, why don't you go somewhere and sit down, because you are drunk?' Red went and lay down on the porch and that fellow (Will Richburg) sat down in the fork of a tree, and I was standing on the porch, and he went to vomiting, and he felt in his watch pocket, and he said, 'Somebody got my money,' and asked me if I had it, and I said, 'No, I never saw you before,' and he said 'Red got it,' and he asked him and said, 'You got my money,' and Red said, 'I have not,' and he pulled him by his feet off the porch, and they looked like they was going to fight, and I took them by the arm and told them to go off, and they went out in the street and began to fight, and Red got the best of him, and Jefferson come by and took Will Richburg off."

There was other evidence of like import.

Pending the trial numerous exceptions were reserved to the rulings of the court, many of which have been assigned as error. The assignment of errors contain 82 separate and distinct grounds.

The verdict of the jury was: "We, the jury, find the defendant guilty of assault with intent to rob as charged in the indictment." By this verdict the defendant was acquitted of the offense of robbery, and was convicted of the lesser offense included in the main charge. The court sentenced him to serve an indeterminate period of imprisonment in the penitentiary of not less than four nor more than five years.

It is true, as insisted, that the verdict of the jury was not responsive to the testimony, for the testimony of Richburg, upon which this conviction rested, tended to show that he had been actually robbed of his money, a completed offense; and it may be true, as further insisted the conviction of defendant for the lesser offense was an indication that the jury entertained sufficient doubt of his guilt to preclude his conviction of the offense as charged, but convicted him anyhow of the lesser offense upon general principles, and not upon any evidence in the case. In this connection the jury acted within its province, and this court is without authority to declare otherwise. The trial court charged the jury on this point as follows: "If you have a reasonable doubt, arising out of the evidence or the lack of it, as to whether the defendant got the money; but if you are satisfied by the evidence beyond a reasonable doubt that the defendant did assault the witness, Will Richburg with intent to rob him, then you would find him guilty of assault with intent to rob under this indictment." The jury acted upon and followed the foregoing instructions, thus exercising their exclusive right so to do. Courts, appellate or otherwise, may not substitute themselves for the juries who are the sole judges of controverted facts, and of the probative force and effect of the evidence in every case submitted to them.

In our case of Chiles v. State, 26 Ala.App. 358, 159 So. 700, this court said (page 701):

"The law contemplates and provides that every person charged with crime shall have a fair and impartial trial, free from error calculated to injure his substantial rights. In Patterson v. State, 202 Ala. 65, 79 So. 459, 462, the Supreme Court said: 'The guilty, as well as the innocent, have a right to be tried in accordance with the law of the land. The innocent ought not to be punished, and the law does not intend or provide that they shall be punished; and as to the guilty, the law provides that such shall not be punished except in the mode and manner provided by the law."'

The foregoing statement is applicable to the case at bar, and to all criminal prosecutions. In this case we have carefully read and attentively considered the entire evidence in this case and are clear to the opinion that this appellant (defendant below) has not been accorded the fair and impartial trial, free from prejudicial error, to which, as stated, he was entitled.

It appears from the record, the court, over objections and exceptions, permitted the State to offer evidence of two separate and distinct conversations between Richburg (the alleged injured party),...