Sanders v. State

• Decision Date: 10 August 1972
• Docket Number: 6 Div. 959
• Parties: In re Tommy William SANDERS, Alias v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
• Court: Alabama Supreme Court

Page 802

266 So.2d 802

289 Ala. 224

In re Tommy William SANDERS, Alias v. STATE of Alabama Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.

6 Div. 959.

Supreme Court of Alabama.

Aug. 10, 1972.

William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for petitioner.

No brief from respondent.

MERRILL, Justice.

Defendant Sanders was convicted of robbery and sentenced to ten years. He appealed to the Court of Criminal Appeals and the judgment was reversed, 48 Ala.App. 589, 266 So.2d 797. The State petitioned for a writ of certiorari on the ground that the decision of the Court of Criminal Appeals was in conflict with a prior decision of this court on the same point of law. We grant the writ.

There was ample evidence from the victim, Smith T. Murphy, and two passers-by that two men, Jasper Hall and Melvin Pye, grabbed Murphy, overpowered him, stabbed him several times as he was wrestled to the ground, and one of them took Murphy's billfold, containing five dollars and some personal papers, from his pocket. The question as to the defendant was whether he aided and abetted Hall and Pye by sitting on Murphy's feet shortly before the billfold was taken.

The only point before us is that on which the judgment was reversed, namely, that the trial court erred in refusing to give Charge I, which follows:

'The Court instructs the jury that if you believe the evidence in this case that Smith Thomas Murphy testified before the Grand Jury that the money consisted of one Five ($5.00) Dollar Bill, then such denomination of the United States Currency was known to the Grand Jury and after considering all the evidence in the case, you believe this to be true, then the Indictment returned by the Grand Jury will not sustain a conviction and your verdict should be 'not guilty."

We quote from the opinion of the Court of Criminal Appeals:

'In this case, the State's witness Murphy, the alleged victim of the robbery, testified first on cross-examination that he told the Grand Jury he was robbed of a five dollar bill and later when recalled on direct examination he testified that he told the Grand Jury it was five dollars. Therefore, a question of fact was presented as to whether the Grand Jury knew the exact denomination of the bill or bills alleged to have been taken from Murphy.

'The indictment in this case contains the allegations, 'Tommy William Sanders, alias Tommy William Sanders, Jr., feloniously took Five Dollars of the lawful currency of the United States of America, a more particular description of which is to the Grand Jury otherwise unknown . . .'

'The testimony of the State's witness was the only testimony with regard to whether or not the grand jury knew the denomination of currency allegedly taken from the State's witness Murphy.

'Under the testimony of Murphy the question of whether the Grand Jury knew the particular description of the currency being a question of fact, the question of whether there was a variance between the allegation of the indictment and proof was a question of fact and it was error for the court to refuse Charge I.

'The question of a variance in the case at bar could not be properly raised by a motion to exclude the evidence or the affirmative charge.

'For the error indicated in the refusal of the court to give Charge I for the appellant, the judgment in this cause is reversed and the cause remanded.'

In Edwards v. State, 49 Ala. 334, this court, speaking through Brickell, J., said:

'It is certainly true, that an indictment for obtaining money, or other thing of value, under false pretences, should aver with reasonable certainty the thing obtained, and that the evidence should correspond substantially with the averment. In this indictment the allegation is, that the appellant obtained 'five hundred dollars in money of the currency of the United States;' and the evidence offered was, that he obtained five hundred dollars in 'National Bank notes.' It is strenuously urged by the counsel of appellant, that this evidence does not satisfy, and is variant from the allegation. The rule, as stated by Archbold, is: 'If the indictment state an obtaining of 'money,' the allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin, or of any bank note, although the particular species of coin of which such amount was composed, or the particular nature of the bank note, shall not be proved.' 3 Archbold's Cr.Pl. 471, 472. Applying this rule, there was no variance between the evidence and allegation, and the evidence satisfied the indictment.'

In Carden v. State, 89 Ala. 130, 7 So. 801, the defendant 'requested several charges to be given to the jury, based on the assumption that the grand jury knew, or by due diligence might have known, a more particular description of the money.' This court, Colpton, J., writing, said (and we quote the entire opinion):

'When the larceny charged is of bills, intended to circulate as money, the description may be general; and an indictment which describes them by kind, denomination, and value is sufficient. The indictment charges defendant with having feloniously taken and carried away, 'from the person of Tom Powell, one ten-dollar bill and one five-dollar bill, in the money of the United States of America,' of the value of $15. This description designates bills circulating as money by authority of the General Government, and, Ex vi termini, the kind or species of currency--national paper currency. It identifies the things stolen, and shows them to be subjects of larceny. The kind, denomination and value are sufficiently averred. Sallie v. State, 39 Ala. 691; Grant v. State, 55 Ala. 201; Levy v. State, 79 Ala. 259.

'The description in the indictment being sufficient, whether a more particular description was to the grand jury unknown becomes an immaterial inquiry. Such an averment in an indictment, sufficiently describing the things stolen, must be regarded surplusage. The court did not err in the refusals to charge as requested by defendant, nor in the rulings on the admissibility of evidence.

'Affirmed.'

Under these two cases, the indictment in the instant case was sufficient, and the phrase 'a more particular description of which is to the Grand Jury otherwise unknown' was surplusage, and the court did not err in refusing the requested charges.

Viewed from another angle, the only evidence before the court as to what was told the grand jury about the description of the money taken from his person came from Murphy, as stated in the opinion under consideration. Murphy 'testified first on cross-examination that he told the Grand Jury he was robbed of a five dollar bill and later when recalled on direct examination he testified that he told the Grand Jury it was five dollars.' If he told the same story to the grand jury that he told before the petit jury then 'a more particular description of which' (the five dollars) was unknwon to the grand jury.

Three cases are cited in support of the holding on this point in the opinion of the Court of...