State v. Robbins, 21314

• Decision Date: 15 October 1980
• Docket Number: No. 21314,21314
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. James Floyd ROBBINS, Appellant.

Page 319

271 S.E.2d 319

275 S.C. 373

The STATE, Respondent, v. James Floyd ROBBINS, Appellant.

No. 21314.

Supreme Court of South Carolina.

Oct. 15, 1980.

Michael N. Duncan of Dunbar & Duncan, Spartanburg, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Brian P. Gibbes, and State's Atty. Lindy Pike Funkhouser, Columbia, and Sol. Claude A. Taylor, Jr., Spartanburg, for respondent.

LITTLEJOHN, Justice:

Appellant James Floyd Robbins appeals his conviction of armed robbery. We vacate the conviction and remand for a new trial.

The conviction grew out of an indictment wherein Robbins was charged with robbing a store. The primary question raised in this appeal is whether the trial judge erred in refusing Robbins' request to charge the law of alibi. In denying the request, the judge rationalized that Robbins testified he had been at the store that night. This is true, but his testimony was to the effect that he had been at the store prior to taking his wife to work at 10 o'clock. It was Robbins' further testimony that after taking his wife to work at 10 o'clock, he went straight home and, accordingly, was not at the store when the robbery is alleged to have taken place, about 10:45 p. m.

A charge on the defense of alibi is not required when an accused person merely denies committing the criminal act. Alibi means elsewhere, and the charge should be given when the accused submits that he could not have performed the criminal act because he was in another place at the time of its commission. The subject is treated in 21 Am.Jur.2d Criminal Law § 136:

" § 136. Alibi-what constitutes; purpose and effect.

The literal significance of the word 'alibi' is 'elsewhere'; as used in criminal law, it indicates that line of proof by which an accused undertakes to show that because he was not at the scene of the crime at the time of its commission, having been at another place at the time, he could not have committed the crime. In other words, by an alibi the accused attempts to prove that he was at a place so distant that his participation in the crime was impossible. To be successful, his alibi must cover the entire time when his presence was required for accomplishment of the crime. To establish an alibi, the accused must show that he was at another specified place at the time the crime was committed, thus making it impossible for him to have been at the scene of the crime. It is not enough for the accused to say that he was not at the scene and must therefore have been elsewhere. The latter statement does not constitute an alibi. And since an alibi derives its potency as a defense from the fact that it involves the physical impossibility of the accused's guilt, a purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all."

The evidence, viewed as a whole, creates the inference that Robbins was submitting to the court that he was elsewhere at the time of the robbery. Accordingly, his first exception must be sustained and a new trial ordered. The granting of a new trial makes treatment of the other issues unnecessary.

REVERSED AND REMANDED.

LEWIS, C. J., and GREGORY and HARWELL, JJ., concur.

NESS, J., dissents.

NESS, Justice (dissenting):

Disagreeing with the majority, I would affirm appellant's conviction for armed robbery.

A Mr. Zip store in Spartanburg County was robbed on December 17, 1978. The primary question is whether the trial judge erred in refusing to charge alibi.

The State presented direct evidence of appellant's guilt and his personal identity as perpetrator of the crime. He did not contest the question of his identity and, in fact actually bolstered the reliability of the victim's identification testimony. The appellant did not present testimony as to facts or circumstances which would have made it practically impossible for him to have been present at the time the crime was committed. His testimony was no more than a mere denial of the charges that he had robbed the convenience store. By his own admission he was at or near the scene of the crime at the time of the robbery and merely seeks to explain and account for his activities.

The presence of the appellant at the scene of the crime at the time it was committed is obviously an essential element of the State's case, and the burden rests upon the State to prove his presence. There is no burden upon the defendant to prove he was at another place. State v. Floyd, 174 S.C. 288, 177 S.E. 375 (1934); State v. Mayfield, 235 S.C. 11, 109 S.E.2d 716 (1959).

The manner of proving an alibi is stated:

"The evidence of alibi must be addressed to the exact time when the offense was committed, and it must show, not merely the improbability of accused's presence at that time, but the impossibility thereof. If the evidence as to alibi, although taken to be true, does not cover sufficient of the time at or before the crime to render the presence of accused impossible or...