Smith v. State, 6 Div. 816

• Decision Date: 30 January 1979
• Docket Number: 6 Div. 816
• Citation: 370 So.2d 312
• Parties: Lamar SMITH, Alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 312

370 So.2d 312

Lamar SMITH, Alias v. STATE.

6 Div. 816.

Court of Criminal Appeals of Alabama.

Jan. 30, 1979.

Rehearing Denied March 6, 1979.

Jon B. Terry, Bessemer, for appellant.

William J. Baxley, Atty. Gen., and James L. O'Kelley, Asst. Atty. Gen., for the State, appellee.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment for ten years.

The indictment was as follows:

"The Grand Jury of said county, charges that before the finding of this indictment Lamar Smith, alias Ricky Hill, whose name to the Grand Jury is otherwise unknown, feloniously took $100.00 in lawful money of the United States of America, of the value of $100.00, the property of Roosevelt Allen, 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, against the peace and dignity of the State of Alabama."

According to the undisputed evidence, on the night of February 18, 1976, two men entered a room at the men's dormitory at Miles College and robbed the only occupant thereof at the time, Roosevelt Allen, of one hundred dollars in currency. One of the robbers was identified as defendant. The other robber was a "guy named Soap." Both of the robbers had guns. One of them slung at Allen and told him "to sit on the bed and put the gun to my head, and put the told me to act like a hero and he would shoot me." Allen complied by sitting on the bed and not offering any resistance. One of the robbers had asked him where his roommate, Douglas Bryant, was. The robbers proceeded to go through the drawers of the furniture in the room; they tried to open the trunk but couldn't get it open; they found the one hundred dollars in his roommate's desk drawer; the money belonged to Allen's roommate, Douglas Bryant. The robbers searched the room thoroughly and left it in great disarray. Before they left, Allen's roommate, Douglas Bryant, entered the room. The robbers required him to pull off his clothes, and about that time Victor Cunningham and a man called "K-Dog" came in. The robbers told Victor and K-Dog to take off their clothes, which they did, after Victor was hit "up side the head with a pistol" by one of the robbers. There was then some noise in the hall made by some football players, and the robbers left the room with the money, the one hundred dollars, that had been taken from the drawer. The robbers left the dormitory running and fired a pistol or pistols about three times as they were about to cross over a fence.

After leaving the campus, "They got in the car and they ran in a ditch. And, they got out and started running." They were soon thereafter apprehended.

The unique feature about the case is that, under defendant's plea of not guilty, there was apparently no effort made by defendant to show that there had not been a robbery of Roosevelt Allen by taking property from his person, or in his presence, but, according to the statement of his counsel, marijuana, not money, was taken. His counsel said:

"MR. JACKSON: Judge, this is the whole defense that this man was being framed what they said was robbery, when in fact some marijuana was taken."

In support of the claim of defendant that marijuana, instead of one hundred dollars in money, was taken, defendant offered the testimony of two witnesses to the effect that Douglas Allen ¹ had stated after the alleged robbery that marijuana, instead of money, was taken. One said:

"And, he said one hundred dollars worth of reefers. But, he said he was going to tell the police he took one hundred dollars in cash."

The other witness said:

"A He told me that he my cousin stole one hundred dollars worth of his stuff. He was talking about reefers.

"Q About what?

"A Reefers, marijuana.

"Q Did he say what he was going to say was stolen?

"A He said he was going to press charges that he stole one hundred dollars."

In furtherance of defendant's "defense," his counsel showed on cross-examination of State's witnesses that nothing was taken from any of the persons in the room while the robbery was taking place or from any of the furniture or furnishings in the room, other than what the alleged victim of the robbery said was taken from the drawer of the desk of his roommate.

Notwithstanding defendant's failure to take the stand, we understand from the record before us that the pivotal issue of fact between the parties was whether the property taken was the one hundred dollars, as testified by the alleged victim, or marijuana as contended by defendant.

"The evidence must show a taking of some property answering substantially to that described in the indictment or information as taken." 77 C.J.S. Robbery § 44b(1) Except as to the value of the property, which can become material in a larceny case so as to distinguish between grand larceny and petit larceny, the description of the property in an indictment for robbery is as material as in an indictment for larceny. In Hammac v. State, 44 Ala.App. 459, 212 So.2d 849 (1968) it was held:

"In a prosecution for larceny the proof must correspond with the description of the identical thing alleged in the indictment to have been taken. The court erred in denying the defendants' motion to exclude the state's evidence on the ground that the description of the property was not proved as charged in the indictments. Morris v. State, 97 Ala. 82, 12 So. 276; Smith v. State, 30 Ala.App. 158, 2 So.2d 341; Wright v. State, 52 Ga.App. 202, 182 S.E. 862; Wilson v. State, (1956) 93 Ga.App. 375, 91 S.E.2d 854."

The verdict of the jury was well supported by the evidence that the property described in the indictment was taken, but evidence to that effect was not so conclusive as to preclude a verdict of not guilty based on a variance between the indictment and the evidence as to the identity or description of the property actually taken.

In the court's oral charge there was no particularization of the only controverted issue in the case, namely, that of the identity or description of the property. No charge was given that the description of the property was a material averment of the indictment and that the jury could not convict unless it was satisfied from the evidence beyond a reasonable doubt that the property as described in the indictment was taken. The nearest to such an instruction is in the following portion of the charge:

"Now, it is necessary for the State to prove to the jury beyond a reasonable doubt and from the evidence that Roosevelt Allen, either owned the property described in the indictment or that it was under his personal protection and control, and he was in lawful possession of it by consent of the owner of such property."

The following written charge requested by defendant was refused:

"If you find from the evidence that the Defendant did not feloniously take $100 00 in lawful money of the United States of America of the value of 100 00 property of Roosevelt Allen 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, you must acquit the Defendant."

The charge should have been given. In Hamilton v. State, 147 Ala. 110, 41 So. 940 (1906), a larceny case, it was held that instructions hypothesizing the description of the money allegedly stolen in counts of the indictment, and requiring that the defendant could not be convicted as to such counts unless the proof showed that the money stolen was in whole or in part the kind of money described in the indictment, were improperly refused.

"Charge No. 2 (asked) by defendant should have been given. It hypothesized the material allegations of the indictment as necessary to be shown beyond a reasonable doubt, before the jury could find the defendant guilty." Crane v. State, 111 Ala. 45, 20 So. 590 (1895).

Notwithstanding the natural aversion to the acquittal of a defendant on a charge of having robbed another of, or stolen from him, property of a particular description when the evidence shows that he did steal from, or rob another of, property other than that described in the indictment, the law so requires. As a matter of law appellant was entitled to be protected against a conviction on a finding by the jury that property was taken from the alleged victim under circumstances that would constitute robbery but that the property taken was not the property described in the indictment. We find nothing in the record to show that the jury was ever instructed in accordance with that principle.

One of the last paragraphs of the court's oral charge was as follows:

"Now, during the course of this trial, the defendant has not testified during the course of this trial. I instruct you that no inference can be drawn from this fact. The defendant has a right under our Constitution not to be compelled to be a witness against himself."

At the conclusion of the court's oral charge, the following occurred:

"(THE COURT) Are there any exceptions?

"MR. SHIELDS: No exceptions.

"MR. JACKSON: We except to the part of the jury charge regarding failure of the defendant to testify.

"THE COURT: Overruled.

"MR. JACKSON: We except.

"THE COURT: Mr. Alternate Juror, you can be excused.

"(WHEREUPON, THE JURY RETIRED TO THE JURY ROOM TO DELIBERATE AT 4:27)."

We think the quoted portion of the court's oral charge was erroneous.

There is a conspicuous lack of uniformity among the American courts as to whether the trial court should instruct the jury as to defendant's failure to take the stand in the absence of a request by defendant for such instruction. 75 Am.Jur.2d Trial §§ 775-778. In § 777 it is stated:

"There has been a conflict of authority as to whether it is proper under the Griffin ² rule for a trial judge, without having been requested by the accused, to instruct the jury that no inferences should be drawn against the accused because of his failure to testify. Some cases have held that since the Griffin decision...