Riggens v. State
Citation | 207 So.2d 141,44 Ala.App. 275 |
Decision Date | 16 January 1968 |
Docket Number | 6 Div. 306 |
Parties | Jimmie Lee RIGGENS v. STATE. |
Court | Alabama Court of Appeals |
Lewis K. Cato and David E. Hicks, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Carl E. Watson, Sp. Asst. Atty. Gen., for the State.
This appeal was submitted on written arguments October 19, 1967.
Riggens was convicted of robbery with the verdict also setting his punishment at fifteen years in the penitentiary. The trial judge found him guilty, and after allocutus sentenced him pursuant to verdict. Code 1940, T. 14, § 415, provides:
Our prescribed form of minimal particulars in an indictment for robbery, No. 95, Code 1940, T. 15, § 259, reads as follows:
'A.B. feloniously took a gold watch, of the value of _ _ dollars, the property of C.D., 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.'
John Leroy Wilkens was the sole attendant at a 'Waco' filling station, September 26, 1966, at 2:45 in the morning. The defendant came up and after some diversionary conversation grabbed Wilkens' collar, 'and stuck a .22 pistol in my side.' Riggens then took the coin changer and a wallet with about $113.00 therein.
Riggens' defense was alibi.
The proof showed that the coin changer and the money were the property of Wilkens' corporate employer. A claim of variance was put to the trial judge by a defense motion to exclude the State's evidence. One ground assigned was variance between allegata and probata as to the ownership of the property taken. The court below overruled this motion.
The thrust of appellant's argument is that Clonts v. State, 42 Ala.App. 287, 161 So.2d 155, requires reversal.
Clonts, however, was a case of false pretense; also, when Clonts got the tires the averred owner was not present even as a bailee of the corporate owner.
Though animus furandi is its motive, robbery is basically a crime against the person. Hence, the indictment need only name the person having the immediate special property of the thing which the robber seeks to take. We believe that this was the common law. See Rex v. Harding (1929), 21 Cr.App.R. 166, wherein the 1800 case of Rex v. Deakin and Smith, 2 East P.C. 653, is quoted with approval.
The description of the owner of the property taken is needful only to exclude the possibility of the taker's being accused of taking that to which he had some right. See Field, C.J., in People v. Vice, 21 Cal. 344.
In Howell v. State, 26 Ala.App. 612, 164 So. 764, we find:
'SAMFORD, Judge.
'The point is made in brief that the title to the money is improperly laid in Morrow, and that there is a variance between the allegata et probata.
In a very discerning argument, counsel for Riggens points out that though Howell cites Higdon v. State, 1 Ala.App. 174, 56 So. 13, and Williams v. State, 5 Ala.App., 112, 59 So. 528, these...
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...in the indictment has a special property right to the property, it is sufficient." 374 So.2d at 430. See also Riggens v. State, 44 Ala.App. 275, 276, 207 So.2d 141, 142 (1968); Lacey v. State, 13 Ala.App. 212, 68 So. 706, 711 (1915). "[T]o constitute a good indictment for larceny the thing ......
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