Threet v. State

• Decision Date: 10 January 1922
• Docket Number: 6 Div. 852.
• Citation: 91 So. 890,18 Ala.App. 342
• Parties: THREET v. STATE.
• Court: Alabama Court of Appeals

91 So. 890

18 Ala.App. 342

THREET v. STATE.

6 Div. 852.

Court of Appeals of Alabama

January 10, 1922

Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.

Henry Threet was convicted of robbery, and he appeals. Affirmed.

Andress & Coffman, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

From a judgment of conviction for robbery the defendant appeals.

Counsel for appellant assigns errors, thus calling specifically to the attention of this court the rulings of the court below wherein the contention is made that the substantial rights of the defendant were injuriously affected. While the assignment of error in a criminal case is not required, it is nevertheless permissible and good practice. Null v. State, 16 Ala. App. 542, 79 So 678.

The first assignment relates to a portion of the court's oral charge where the court said:

"If he fails in establishing his alibi, the jury may take into consideration that circumstance as throwing light on the question of whether he is guilty or not."

The contention is made that this portion of the court's charge "is too strong and assumes that the alibi had not been proved." In this we cannot agree, for, when the court's charge on this subject as a whole is considered it clearly appears there was no invasion of the province of the jury in this connection, and that the question as to whether or not the testimony of defendant and his witnesses was sufficient to reasonably satisfy the jury relative to his alibi was clearly left to the determination of the jury. In this connection the court said:

"Now, gentlemen, there has been some testimony here tending to show an alibi for this defendant. That is, an attempt on his part to show that he was not at the place where this robbery is alleged to have been committed, at the time that it was committed. Now, that is the best sort of a defense, that is, when it is proven, and it is for you to say whether it has been proven or not. You heard the evidence on that. The law is this: That when an alibi is attempted to be proven, or has been undertaken to be made to show that the defendant was at some other place than where the crime is alleged to have been committed, at the time, if he fails in establishing his alibi, the jury may take into consideration that circumstance as throwing light on the question of whether he is guilty or not."

While it is true that a failure in an attempted proof of alibi should not be visited with severer intendments than a failure in the attempt to prove any other material facts in defense ( Albritton v. State, 94 Ala. 76, 10 So. 426), and that the law recognizes no distinction between the consequent weight of an unsuccessful attempt to establish an alibi as a defense and an unsuccessful attempt to prove any other material fact in defense, it is also a well-recognized principle that an attempt to prove any material fact in defense, followed by a failure, is a circumstance to be weighed against the party making it.

This statement of the court complained of appears to be fully authorized by the following authorities: Jackson v State, 117 Ala. 155, 23 So. 47; Tatum v. State, 131 Ala. 32, 31 So. 369; Jones v. State, 176 Ala. 20, 58...