Staggs v. State

• Decision Date: 14 August 1973
• Docket Number: 8 Div. 212
• Citation: Staggs v. State, 283 So.2d 652, 51 Ala.App. 203 (Ala. Crim. App. 1973)
• Parties: Bobby James STAGGS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 652

283 So.2d 652

51 Ala.App. 203

Bobby James STAGGS v. STATE.

8 Div. 212.

Court of Criminal Appeals of Alabama.

Aug. 14, 1973.

Rehearing Denied Sept. 25, 1973.

W. A. Barnett and Harold G. Peck, Florence, for appellant.

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

WILLIAM P. POWERS, Circuit Judge.

Robbery: sentence, ten years imprisonment.

I

Bobby James Staggs was indicted, tried, convicted and sentenced to a term of ten years by the Circuit Court of Limestone County. Staggs' motion for a new trial was denied, and he appeals.

I

The defendant was driving an automobile which was stopped by Deputies Cleatus Craig and Norman Looney of the Limestone County Sheriff's Department at approximately 2:00 o'clock in the morning. Deputy Looney asked the defendant to step out for a check of his driver's license.

The passenger in the defendant's vehicle placed a gun in Craig's back and instructed him to remove his gun. The passenger then instructed Looney to come around the car. As Looney made a move for his gun Staggs said 'don't do that or he will kill him.' Staggs placed his right hand in his right front pocket which appeared to contain a small caliber pistol which he then pointed at the deputy. Staggs then forced the deputy to return his driver's license to him, and the passenger took the deputies' guns and forced the deputies down an embankment. The passenger left the scene in the patrol car, and Staggs left the scene in his automobile with Looney's pistol.

Testimony was offered and received over the objection of defendant concerning an attempt by him to bribe a witness. A witness also testified that defendant admitted having in his possession the property taken.

III

Defendant contends on this appeal that the evidence was insufficient to support a conviction.

Robbery at common law has been defined as the felonious taking of money or goods of value from the person of another or in his presence against his will by violence or by putting him in fear. The evidence shows that the defendant was driving the automobile in which both he and the passenger were riding, that he made the statement during the course of the crime, 'Don't do that or he will kill him,' that he drove the automobile away from the crime leaving the deputies, that he had his hands on what appeared to be a gun and pointed it at the deputy during the course of the crime. The defendant admitted that he had the property taken in his possession of control.

Title 14, § 14. Code of 1940 provides as follows:

'The distinction between an accessory before the fact and a principal, between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors.'

It has been repeatedly held that any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether the one so contributing is present or not, brings the accused, under such circumstances, within the influence of T. 14, § 14. McMahan v. State, 168 Ala. 70, 53 So. 89; Davis v. State, 36 Ala.App. 573, 62 So.2d 224.

The defendant also argues that the trial court erred in allowing evidence that the accused attempted to bribe a witness. This contention is without foundation. A party's attempt to suppress evidence is admissible against him. Liles v. State, 30 Ala. 24; Whatley v. State, 209 Ala. 5, 96 So. 605; Woodard v. State, 253 Ala. 259, 44 So.2d 241.

The defendant further argues that the trial court erred in the refusal to give the following requested charge:

'4. The court charges the jury that an indictment for robbery also embraces the charge of larceny.'

A defendant is entitled to a charge on lesser offenses included in the indictment if there is any reasonable theory from the evidence which would support the position. Stovall v. State, 34 Ala.App. 610, 42 So.2d 636, cert. den. 252 Ala. 670, 42 So.2d 639. However, it is not error, and a conviction for robbery should not be reversed for refusal of the trial court to charge on larceny unless there was a reasonable theory from the evidence which would not support a robbery conviction but would support conviction for larceny. In this case the evidence could only establish the crime of robbery, and the refusal of the trial court to charge on larceny as requested was not error. Kelley v. State, 235 Ala. 5, 176 So. 807, reversing 27 Ala.App. 584, 176 So. 806; Brooks v. State, 36 Ala.App. 310, 55 So.2d 366.

The defendant's other claims of error relate to alleged prejudicial argument of counsel which are also without merit and are not supported by the record in that the objections of defendant which were overruled did not sufficiently specify the statements of the State's counsel.

IV

We have considered the entire record in this case, and from this examination we conclude that error is not made to appear.

The foregoing opinion was prepared by Hon. WILLIAM P. POWERS, Circuit Judge, temporarily on duty on the Court pursuant to subjection (4) of § 38, T. 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

Affirmed.

All the Judges concur.

ON REHEARING

PER CURIAM.

Appellant claims that the opinion on original deliverance states certain 'facts' inaccurately. An appellate court does not strictly make 'findings' of fact. Rather it sets forth the tendencies of the evidence which appear to have convinced the jury.

In this instance we shall quote from the direct examination of Deputy Looney:

'Q. All right, describe how the car was being operated when you followed it, in your judgment, three miles.

'A The car was being driven in an erratic manner on 31 South. What appeared, the driver might be drinking.

'Q What do you mean by erratic manner?

'A Means crossing the enter line, I don't know how many times exactly, and he would go back toward the edge of the road.

'Q You recall, or do you not, this has been over a year, the speed that you followed the car?

'A I don't recall that.

'Q Do you have a judgment as to whether it was a normal rate of speed or--

'A It was normal rate of speed. It wasn't a high rate of speed.

'Q. All right, did you stop the car then?

'A Yes, sir.

'Q Were you driving the Sheriff's car?

'A Yes, sir.

'Q All right, when you stopped the car, did you pull up behind it or beside it or what?

'A We pulled up beside it the best I remember, and turned the blue light on it and dropped behind it when we pulled to the side of the road.

'Q You first pulled up beside it, and after he pulled off, you dropped behind it?

'A Yes, sir.

'Q All right, when you got there, did he stop?

'A Yes, sir.

'Q Did you all stop behind him?

'A Yes, sir.

'Q How far behind, in your judgment?

'A About five feet.

'Q All right, did you have your lights shining on the back of this '62 Ford automobile?

'A Yes, sir.

'Q Could you see the tag?

'A Yes, sir.

'Q You recall anything about the county it represented?

'A 41 tag.

'Q Do you know county that represents?

'A Lauderdale County.

'Q All right, what, if anything, did you do after he stopped there, and what, if anything, was--

'A I got out of the car and the driver of the other car got out and come in back to meet me, and I asked him for his driver's license, and he handed me his driver's license.

'Q All right, did you look at them?

'A Yes, sir.

'Q What did they say?

'A Given name as Bobby Staggs. I recall a Florence address. That's all I recall.

'Q Bobby Staggs from Florence was on the license tags?

'A Yes, sir.

'Q All right, could you see him when he got out of the car?

'A Yes, sir.

'Q Get a good look at him?

'A Yes, sir.

'Q Do you see that person in the courtroom today?

'A Yes, sir.

'Q Point him out to the jury.

'A He is the defendant seated to my right over here.

'Q All right, what, if anything, took place or happened after the defendant got out and handed you the license that had Bobby Staggs on it?

'A Deputy Craig walked up to the side of the car and was having a conversation with another occupant of the car, which I couldn't hear their conversation, and this other occupant got out, and Deputy Craig was looking in the car and found a pistol in the floor board, and turned to ask the subject for--if he had a permit, and that's about all I could hear of their conversation.

'Q What did you see? Did you see anything between you and the defendant here and Cleatus and the other man?

'A I really couldn't see what was going on. I could tell by Cleatus' expression he was apparently in trouble.

'MR. PECK: We object to that, if it please the Court, as being an illegal conclusion as to what he could tell by his expression, and move to exclude anything in consideration of the jury.

'THE COURT: Overruled.

'Q You realized that Craig was in trouble?

'A Yes sir.

'Q What happened then?

'A The other subject then started backing back toward the patrol car, and when he got just past the right front fender of the patrol car, the best I could hear him, he said to me to come around toward him with my hands in front of me.

'Q What did you do when you realized he was in trouble?

'A I made a move toward my gun.

'Q What happened when you made a move toward your gun?

'A The man which I checked his license told me, 'don't do that or he will kill him.'

'Q The defendant said, 'don't do that or he will kill him'?

'A Yes, sir.

'Q All right, then what--where did the defendant have his hands?

'A He had his right hand in his right front pocket.

'Q Jacket or pants, trousers?

'A Pants pocket.

'Q All right, when you looked at his pants, trousers there, what did it look like?

'MR. PECK: We object to what it looked like.

'THE COURT: I sustain it. You can describe it.

'Q Describe what you saw.

'A It appeared that it might have a...