Smith v. State

• Citation: 326 So.2d 680,57 Ala.App. 151
• Decision Date: 09 December 1975
• Docket Number: 3 Div. 383
• Parties: Bruce L. SMITH, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 680

326 So.2d 680

57 Ala.App. 151

Bruce L. SMITH, alias v. STATE.

3 Div. 383.

Court of Criminal Appeals of Alabama.

Dec. 9, 1975.

Rehearing Denied Jan. 20, 1976.

James W. Garrett, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.

DeCARLO, Judge.

Robbery; ten years.

The indictment in this case charged:

'. . .. Bruce L. Smith, alias . . . feloniously took $5.00 in lawful currency . . ., the property of Arlin Smith, 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 . . .'

In support of this charge the State presented the following testimony.

On April 27, 1974, Arlin Smith's car stalled near the interstate in Mongomery, Alabama. After leaving his car, Smith walked to nearby Court Street where a car, occupied by three males, pulled into a driveway in front of him. One of the trio asked him for a cigarette. When he went over to the car the following occurred:

'. . . One asked me for a dollar in my pocket, and I told him I didn't have one, and then he said, 'give me a dollar in your pocket'. And I said, 'Well, I don't have one.' And the guy sitting on this side of the car, the passenger, said, 'Let me see your billfold.' And I didn't say anything. And the driver stuck the gun up and said, 'The man wants to see your billfold'. So I pulled my billfold out of my pocket and said I didn't have but five dollars, so they took my billfold and took the five dollars and gave me my billfold back. And the guy said he was going to find a store or something, so they left.'

Arlin Smith stated that the billfold was turned over to the appellant.

Detective Kenneth A. Hitson of the Montgomery Police Department received the robbery complaint on the afternoon of the incident. He testified that Smith related what had occurred and gave him the license number of the car. A line-up was conducted on the following Sunday and Smith identified the appellant.

At the conclusion of the State's case the appellant's motion to exclude was overruled and the following testimony was offered.

George Davis, a codefendant, testified that he met the appellant only minutes before the alleged robbery. He had been asked by George Douglas to drive the car to appellant's house. When they arrived, Bruce Smith got into the car and Davis continued to drive. Douglas was sitting on the back seat and appellant sat next to Davis in the front seat. While driving on Court Street, Davis saw Arlin Smith and remarked he knew him. One of the others called to Smith and when he came over to the car Douglas asked for the loan. Davis gave this account of what followed:

'After that, he (Arlin Smith) said, 'Man I ain't got none. I ain't got no money.' So they kept talking, and then he said, 'I got one five dollars.' And Bruce told him he had change, and he handed it to him; and then he said he didn't have change. So then we backed out and was fixing to go. We went up on Marshall Street--.' (Bracketed material added).

Davis denied the three had any agreement to rob and stated he did not point a gun at Arlin Smith.

In a statement made to the police, Davis admitted showing to gun to 'the boy,' Arlin Smith. He stated the reason 'the boy' gave Bruce the money was, 'I reckon he was scared. He said he could have the five dollars, 'just let me go home."

The appellant testified that just before they encountered Smith, Davis remarked he knew him and Douglas who was sitting on the back seat called to Arlin Smith:

'. . . George Douglas, . . . said, 'Hey, man, loan me a dollar.' So he said, 'I don't have no money,' just like that. So he said, 'Loan me a dollar, man.' He said, 'I don't have no money.' So he said, 'Man, loan me a dollar.' So he said, 'Well, man, all I got is five dollars,' just like that. 'All I got is five dollars,' and he did his hands something similar to this (indicating).

'So he went in his pocket and pulled his wallet out; and when he pulled his wallet out, he opened his wallet up, and his wallet had a little money compartment with a bill compartment. He opened it up just like that and said, 'All I've got is five dollars,' just like that. So, I said, 'Look here, man, I might have some change.' So I run my hand in my pocket, and I went through my bills, and I didn't have but three one dollar bills, you know. I had about ten twenties but I didn't have but three one dollar bills. I said, 'Man, I don't have no change.' I said, 'I'm going to go to the store and get some change,' just like that.

'So he handed the five dollar bill in the car. He handed it to me in the car; and by me sitting on the side that he was, I took the five dollar bill. I accepted the five dollar bill from him. I said, 'We'll go get some change,' so we left . . .'

Appellant stated he did not threaten Arlin Smith and denied seeing the gun on this occasion. He admitted seeing it later.

I

Under T. 15, § 389, Code of Alabama 1940, Recompiled 1958, this court is required to examine all rulings adverse to appellant's cause and in deference to that duty we reviewed the following.

During Arlin Smith's testimony, he began to recount what occurred after the trio drove away and subsequently returned. Appellant objected, arguing what occurred after the original encounter was not part of the res gestae. In a hearing out of the jury's presence, the court concluded it was. Smith then testified that when the car returned, appellant approached him and this occurred:

'So he came back to the corner, and he told me--something about first he couldn't find a store, and then he told me to come over to the car, and I told him I had to go home. He said something. I can't remember what he said, but that's when he grabbed me by the arm and told me to come over to the car; so we go down, and he pulled my hair and pulled my head into the car and rolled the window up on my neck.'

Later Ted Wiggins was allowed to testify over appellant's objection to the following facts relating to the same incident.

At about 3:30 P.M. on the day in question, Wiggins saw a car occupied by three males stop on Marshall Street. One of the occupants got out of the car and walked over to Arlin Smith. Some words were exchanged and Smith followed the man over to the car. The man got back into the car on the passenger side next to the driver. At that time, Smith bent over near the car window and the man grabbed Smith's hair. He pulled his head into the window and rolled the window up on Smith's neck.

Wiggins stated he saw the driver point a gun at Smith and the man on the back seat deliver a blow to Smith's head. At the time, Wiggins was standing in his yard and yelled at the group several times. Smith was then released and the trio drove away.

Time is not the only criterion for determining whether a thing said or done is a part of a given transaction. If the act done, or statement made leads up to, or is the result of the main fact, or tends to shed light upon, or gives character to the occurrence constituting the gist of the inquiry; then it is admissible as part of the res gestae. Dillard v. State, 27 Ala.App. 50, 165 So. 783.

In the present case the acts occurring after the main fact were not disjoined by a great span of time. The evidence indicated that the trio could not have driven more than a block before they returned to the scene. Under this circumstance, we believe the acts done and statements made afterwards were not only connected by the time factor, but were the result of the main fact. This evidence shed light upon, and gave character to thing done. It was part of the res gestae.

II

The appellant testified in his own behalf and described the circumstances surrounding his involvement in the alleged robbery. He explained they approached Arlin Smith only because George Douglas wanted to borrow a dollar from him.

When the State's cross-examination was concluded, the court proceeded to question the appellant. After the court's examination, defense counsel approached the bench. He requested a mistrial be declared, alleging through its questioning the court had illustrated the incongruity of appellant's story. Counsel averred the questioning intimated an unlikelihood a loan would be sought from a little known person when appellant possessed a large sum containing dollar bills.

It was asserted that during this questioning the court demonstrated in its tone of voice and facial expressions a disbelief in appellant's answers. Counsel complained this had a prejudicial effect on the jury.

In responding to appellant's motion, the court remarked:

'THE COURT: Well, the Court felt it was its duty in the interest of justice to ask certain questions of the defendant so the jury would not be confused about it, because it was in the interest of justice that the Court asked certain questions that have not been asked by the lawyers. So far as the Court's attitude and being disgusted, the Court, I might say, has been rather--I wouldn't use the word 'disguested' throughout the whole trial, because--and I have been looking at the ceiling several times, not because of what the defendant is saying, but because of what the lawyers are saying.'

The motion was overruled and the jury was recalled.

Appellant now contends it was error to refuse the motion for a mistrial. Counsel argues this behavior by the court constituted an expression of opinion on appellant's credibility as a witness.

In determining the foregoing question we reviewed the record and found that the judge in his preliminary remarks cautioned the jury what he said during the upcoming trial was not to be taken as evidence. Also in the court's oral charge the judge again admonished the jury on the same point in this language:

'. . . The evidence you get is what comes from here and not from anybody else, including me; so you can't take anything I say or anything either one of the counsels...