Sparks v. State

Decision Date15 September 1970
Docket Number7 Div. 9
Citation242 So.2d 403,46 Ala.App. 357
PartiesDonald SPARKS v. STATE.
CourtAlabama Court of Criminal Appeals

H. T. Foster, Scottsboro, Loma B. Beaty, Fort Payne, for appellant.

MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.

PRICE, Presiding Judge.

Appellant, Donald Sparks, stands convicted for the offense of robbery, with a penitentiary sentence of ten years.

The evidence tends to show that three armed men, with scarves covering their faces, entered the home of Wendell West, in Fort Payne, Alabama, around eleven o'clock p.m., June 27, 1966. They handcuffed and bound Mrs. Cleo West and Mrs. Wilson, a woman companion, and removed the keys to Mrs. West's Dodge Dart automobile from her purse. When Mr. West came home about one o'clock two men, each holding a gun to his head, took $334.00 from his pocket. Mr. West was then taken into the bathroom and immersed in a bathtub full of water in an effort to force him to reveal the whereabouts of his money. During the scuffle in the bathroom defendant's scarf dropped and Mr. West saw defendant's face. Mr. West was taken into the room where his wife and Mrs. Wilson were. He was handcuffed and his eyes were taped. Defendant took the keys to Mr. West's office and left with one of the men, later identified as William K. Knight. The third man remained at the house for about an hour and a half, until someone came and called to him and he left.

Officers Kean and Shirley, Fort Payne policemen, stopped the West's Dodge Dart on a Fort Payne street during the early morning hours of June 28th. Defendant was driving the car. Knight was riding as a passenger. Neither of them could produce identification or driver's license. There were two pistols and a carbine in the car. Three cars were driven to the police station. Officers Kean and Shirley in the lead car and Sergeant Pack, a Fort Payne policeman in the police car behind the Dodge Dart driven by the defendant. Upon reaching the police station, the defendant got out and walked over to the side of Sergeant Pack's car and talked with him through the window. Defendant then ran back to the West car and drove away. The car was found abandoned some two or three hours later.

Sergeant Pack was also indicted for the robbery of Wendell West. He testified he had never seen defendant prior to the trial. He testified Mr. Clyde Traylor, representing the State, had promised him a 'clean bill of health' if he would identify the defendant, Donald Sparks, as the driver of the West automobile.

Donald Sparks testified as a witness in his own behalf that he was not in Fort Payne on the evening of June 27, 1966, or the early morning of June 28; that he was in Sapulpa, Oklahoma; that he had never entered the West home or driven the Dodge Dart.

The defendant sought to establish an alibi through the testimony of Mr. Jesse Henson, owner and manager of a motel in Sapulpa, who testified Donald Sparks was registered in his motel from June 26 to June 29, 1966. He identified defendant as the person who registered and that he was present on each of the three nights.

Mr. Clyde Traylor, for the State in rebuttal, stated he had never made a promise to Sergeant Pack pertaining to Pack's identification of defendant.

The testimony presented questions for the jury's determination and was sufficient to sustain the verdict. There was no error in the court's refusal of the requested general affirmative charge nor in the denial of the motion for a new trial.

Counsel for appellant filed motion to quash the indictment on the ground there was no legal evidence before the grand jury to authorize the finding of an indictment.

The burden of proving the indictment was returned without legal evidence before the grand jury rested upon defendant. Gore v. State, 22 Ala.App. 136, 114 So. 791; Sparrenberger v. State, 53 Ala. 481; Franklin v. State, 233 Ala. 203, 171 So. 245.

No proof was presented to support the allegation that there was no legal evidence before the grand jury. The defendant failed to meet the burden placed upon him. The motion to quash was properly denied.

The defendant filed motion to require the state to produce testimony presented to the grand jury which returned the indictment. The motion was overruled. The judgment entry recites that the testimony taken on this motion shows conclusively that the testimony before the grand jury was not preserved in writing. Adams v. State, 33 Ala.App. 136, 31 So.2d 99, holds that if the state uses part of the transcribed notes of the testimony before the grand jury, the defendant is entitled to inspect all of such testimony.

In Bailey v. State, 24 Ala.App. 339, 135 So. 407, the court said the trial judge will not be put in error for refusing to order production of grand jury notes where they were used by the prosecutor merely to formulate questions and were not offered in evidence by the state. See also the article by Hon. L. Drew Redden, published in 22 Alabama Lawyer at p. 115 (April, 1961).

Without deciding that a defendant is entitled to be furnished with the testimony taken before the grand jury, (See Sanders v. State, 278 Ala. 453, 179 So.2d 35) we simply hold that in this case the motion was properly denied, since the judgment entry shows the testimony before the grand jury was not available.

Appellant contends the trial court erred in putting him to trial over objection when three jurors, properly summoned, failed to appear.

The judgment entry shows that the jury list served upon the defendant from which to select a jury consisted of eighty jurors regularly drawn for jury duty and twenty special jurors properly drawn, consisting of venire of one hundred jurors. A hearing was had on the motion. The sheriff testified he was unable to locate one of the jurors inquired about. The trial judge stated he had not excused either of the three jurors. There was no error in the court's ruling. Nolen v. State, 35 Ala.App. 249, 45 So.2d 786; Title 30, §§ 63 and 67, code of Alabama 1940.

The clerk entered opposite each name on the jury list the occupation and place of residence of such person. The provisions of Title 30, § 30, Code, supra, as to the listing the place of business of each person are directory only, and the failure to list the place of business is not a ground for granting a motion to quash the venire, § 45, Title 30, Code, supra; Childress v. State, 122 Ala. 21, 22, 26 So. 162; White v. State, 136 Ala. 58, 34 So. 177. There was no showing of fraud. Cook v. State, 134 Ala. 137, 32 So. 696; White v. State, supra.

Defendant's motion for a continuance because of the absence of the witnesses William K. Knight, alleged to have been a participant in the robbery, and Ida Bell Wilson, the woman who was with Mrs. West at the time of the robbery, was denied.

The motion for a continuance was addressed to the sound discretion of the trial court, whose action is not reviewable unless gross abuse is shown. Denial of continuance is not a palpable abuse of discretion in the absence of a showing as to what the witness would testify. Brand v. State, 13 Ala.App. 390, 69 So. 379; Hudson v. State, 217 Ala. 479, 116 So. 800. No showing as to what the absent witnesses would swear was introduced in support of the motion. We find no abuse of discretion.

Counsel argues in brief that defendant was deprived of his constitutional right to compulsory process for the attendance of witnesses. It was shown that ordinary compulsory process of subpoena had been issued for these witnesses, but that Knight was not found and at the time of trial Mrs. Wilson was in Florida.

In Childress v. State, 86 Ala. 77, 5 So. 775, the court said:

'Extraordinary compulsory process, such as attachment, is not resorted to, until the witness has placed himself in contempt, and the propriety and the necessity of the process are shown. The court is not bound to order an attachment, ex mero motu, on the failure of the witness to appear in answer to the subpoena. It is not shown that the defendant asked for an attachment, or other compulsory process.'

It is not shown that the defendant asked for an attachment or that the witnesses were within the jurisdiction of the court. Forrester v. State, 41 Ala.App. 654, 148 So.2d 251; Jarvis v. State, 220 Ala. 501, 126 So. 127. See...

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