Smiley v. State
| Decision Date | 23 April 1974 |
| Docket Number | 3 Div. 243 |
| Citation | 299 So.2d 312,53 Ala.App. 268 |
| Parties | Howard Scott SMILEY, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Whitesell, Gordon & Gallion, Montgomery, for appellant.
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
The appellant was convicted of robbery and sentenced to thirty years imprisonment in the penitentiary. This appeal is from the conviction and judgment of the circuit court.
Arraignment in the circuit court was on May 15, 1973, at which time appellant entered his plea of not guilty and trial set This was all of the evidence introduced by the appellant on the motion for a continuance and after hearing argument of counsel, the motion was overruled and denied by the court.
for June 13, 1973. On the day of trial appellant filed a motion for a continuance and upon a hearing thereof on that date, [53 Ala.App. 270] June 13, 1973, he introduced as Exhibit A, a copy of the judgment of the U.S. District Court for the Middle District of Alabama in the case of Penn et al. v. Eubanks et al., dated June 6, 1973, 360 F.Supp. 699, in which the judge of that court held that the jury roll and jury box of Montgomery County was illegally constituted and violative of the constitutional rights of the plaintiffs because of discrimination against and systematic exclusion from the jury rolls of prospective female jurors and prospective jurors of the Negro race.
The main argument for error advanced by the appellant on this appeal is the action of the court in overruling the motion above referred to.
We think the appellant failed to exercise the proper procedural methods for attacking an improper jury venire. In the case of Washington v. State, 269 Ala. 146, 112 So.2d 179, the court stated:
This principle is further upheld in Thomas v. State, 257 Ala. 124, 57 So.2d 625, and many other cases which could be cited in support of this proposition.
A failure to raise proper objection going to the venire of the petit jury before entering upon trial of the case on its merits, under the defendant's plea of not guilty, constitutes a waiver of his rights to do so unless he is mislead by a false oath and fraud of venireman and thereby induced to accept such venireman. Ball v. State, 252 Ala. 686, 42 So.2d 626, cert. denied 339 U.S. 929, 70 S.Ct. 625, 94 L.Ed. 1350; Vernon v. State of Alabama, 239 Ala. 593, 196 So. 96, cert. denied 311 U.S. 694, 61 S.Ct. 135, 85 L.Ed. 449, rehearing denied 311 U.S. 730, 61 S.Ct. 390, 85 L.Ed. 475, vacated 313 U.S. 540, 61 S.Ct. 833, 85 L.Ed. 1509, reversed 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513.
This is true even though the objection claimed by the defendant as a basis for the challenge is the unconstitutionality of the jury selection process. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216.
Reverting to the order of the U.S. District Court for the Middle District of Alabama in Penn v. Eubanks, supra, which is a civil action, it appears that the jury commission of Montgomery County was allowed four months from the date of the order in which to empty the box, compile a new jury roll in accordance with the terms of the order, and refill the jury box for use in Montgomery County, Alabama. It, therefore, appears that the order was not retroactive but prospective and that the time allowed had not elapsed at the time of the filing of the motion for a continuance in the instant case. Black v. Wilson, 281 Ala. 6, 198 So.2d 286; White v. Crook, D.C., 251 F.Supp. 401.
It is well established that a motion for the continuance of a criminal case is addressed to the sound discretion of the trial court and the court's decision overruling such a motion will not be disturbed by an Appellate Court in the absence of abuse of discretion.
We are not convinced that there was any error in the order of the court denying and overruling the motion for a continuance, since we see no abuse of the court's sound discretion. Seibold v. State, 287 Ala. 549, 253 So.2d 302; Segers v An examination of the record reveals that appellant raised the question of variance between the charge in the indictment that the property (money alleged to have been taken from State witness Goodgame in the robbery) was the property of R. C. Goodgame while the proof showed that the witness Goodgame was merely in possession of the property as agent of the motel. There is no merit to this contention since property obtained in a robbery may be taken from the possession of an agent even though the ownership is in the agent's principal. Howell v. State, 26 Ala.App. 612, 164 So. 764; Riggens v. State, 44 Ala.App. 275, 207 So.2d 141.
State, 283 Ala. 694, 220 So.2d 882; Divine v. State, 279 Ala. 291, 184 So.2d 628.
The further motion of appellant based on Title 15, Section 307, Code 1958, Recompiled, related to the conviction of appellant based solely upon the corroborative testimony of an accomplice is not sustained by the evidence. There is ample evidence of appellant's connection with the robbery by events testified to by State witnesses of his action before and immediately after the robbery connecting him therewith.
At the request of appellant the court gave six written charges and refused ten. Refused charges 3, 4, 5, 6, 10, 11, 12, 13 and 15 were either covered by the oral charge of the court or one or more written charges and therefore, there was no error in their refusal.
Refused charge 9 is as follows:
'The court charges the jury that if, after considering all the evidence in the case, that tending to show guilt, together with that tending to show innocence, there would spring up involuntarily in the minds of the jury from any part of the evidence, a probability of the innocence of the defendant, the jury must acquit the defendant.'
This charge has been held had in several cases, including Byers v. State, 23 Ala.App. 70, 121 So. 8; Griffin v. State, 150 Ala. 49, 43 So. 197; Chastain v. State, 36 Ala.App. 186, 54 So.2d 623; Stafford v. State, 33 Ala.App. 163, 31 So.2d 146; Walker v. State, 33 Ala.App. 614, 36 So.2d 117. The wording in the charges dealt with in the cases holding the charge bad differ somewhat from case to case but the substance of each charge is the same as charge 9.
On the other hand, the identical charge was held to be good in Wilson v. State, 243 Ala. 1, 8 So.2d 422; Suggs v. State, 36 Ala.App. 66, 54 So.2d 794...
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...v. State, 243 Ala. 1, 8 So.2d 422 (1942), it was held that such a charge stated a correct proposition of law. In Smiley v. State, 53 Ala.App. 268, 299 So.2d 312 (1974) we took especial note of the fact that the charge had "been held bad in several cases" but that it had been held good in ot......
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