Watts v. State, 6 Div. 651

• Decision Date: 01 October 1974
• Docket Number: 6 Div. 651
• Citation: 53 Ala.App. 518,301 So.2d 280
• Parties: Benjamin WATTS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 280

301 So.2d 280

53 Ala.App. 518

Benjamin WATTS v. STATE.

6 Div. 651.

Court of Criminal Appeals of Alabama.

Oct. 1, 1974.

Daniel M. Spitler and Calvin M. Howard, Birmingham, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Birmingham, for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found appellant-defendant guilty of robbery as charged in an indictment, to which he had pleaded not guilty, and fixed his punishment at imprisonment in the penitentiary for a term of fifty years. The trial court rendered judgment and sentence accordingly, and this appeal was taken therefrom.

According to the evidence in the case, the office of Fairfield Finance Company, Inc., a corporation, doing business as Bel-Air Finance Company in Birmingham, Alabama, was robbed by two armed men.

Two employees and the office manager positively identified defendant as one of the robbers.

Defendant and defendant's sister testified that on the day of the robbery he was constantly with her in Birmingham for several hours and thereafter left by plane to Las Vegas, Nevada, before the time witnesses had testified the robbery occurred. Defendant also testified that he did not participate in the robbery in any way.

A showing was introduced by the defendant that Jimmy Lee Ogletree, who had been previously convicted of robbing the finance company on the particular occasion, would testify that defendant was not present at the time of said robbery and did not participate in the crime.

Appellant takes the position that the indictment was defective in failing to aver that there was a 'taking and carrying away' of property of another from his person or presence. Thompson v. State, 24 Ala.App. 300, 134 So. 679 is cited in support of this position. There is language in the cited case relative to 'taking and carrying away,' or asportation, but the opinion does not support appellant's position. In that case the court was distinguishing between the elements of larceny and those of robbery. In connection with the concept or definition of larceny, the term 'taking and carrying away,' or a derivative thereof, is usually found. Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603. As to robbery, the conventional term is 'taking . . . from the person of another.' Cobern v. State, 273 Ala. 547, 142 So.2d 869. This difference in terminology is recognized in the forms of indictment contained in Title 15, § 259, Code of Alabama, Form 66 for grand larceny and Form 95 for robbery. The indictment here is in the form prescribed by statute, Form 95. It is sufficient to meet any requirement of asportation in the common law offense of robbery. 77 C.J.S. Robbery § 3. There is no statutory offense of robbery in Alabama. Thompson v. State, supra; Douglass v. State, 21 Ala.App. 289, 107 So. 791.

The indictment charged that the money taken, the sum of $1,371.21, was 'the personal property of Homer Eugene Smith,' and was taken from his person. The testimony shows that the money was actually owned by a corporation then being managed by Homer Eugene Smith, a substantial stockholder therein. Appellant urges there was a variance between the evidence and that part of the indictment alleging that the money was the property of Smith. The precise question has been decided adversely to appellant in Riggens v. State, 44 Ala.App. 275, 207 So.2d 141, wherein it is made clear that the special property right of the named victim does not necessarily involve legal title to the property and that his rightful possession and control of the property at the time is sufficient to support a conviction.

It is insisted by appellant that 'The selection of the jury in the present case violated defendant's rights as guaranteed by the Fifth Amendment to the United States Constitution, in that it provided for a selection of a jury in which there was a systematic or arbitrary exclusion, or a discrimination between persons of a particular race, namely the Negro race.' The jury selection in this case commenced with thirty-six qualified jurors; fourteen were black. In the process of striking the jury, appellant, through his counsel, struck two of the black members of the venire. The State struck the other twelve. After the jury was struck, appellant invited the attention of the court to the fact that the jury was then an all-white jury and requested that he be allowed at least one black juror. The court did not comply with the request, and the case proceeded to trial by a jury of twelve white jurors. The appellant urges that this action violated 'principles that require a cross section or segment of the community in the jury' and relies upon Wong Yim v. U.S., 118 F.2d 667 (CCA Hawaii, 1941). The case cited does not support appellant's contention.

It so happens that defendant could have had at least two black jurors on the jury trying him, if he and his attorney had not elected to strike two black jurors on the panel. Irrespective of that fact, however, he has misdirected his contention, in claiming that in the selection of the actual jury to try the case, as distinguished from a previous step in the process of providing a venire from which a jury of twelve was to be selected, there was discrimination against defendant's race. The actual selection, whether by striking as was done here or by challenging peremptorily, is completely in the hands of the parties, here the State on one hand and the defendant on the other. No case has been cited, and we have found no case, to support appellant's position in this respect. The cases of Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946) and Ware v. United States, 123 U.S.App.D.C. 34, 356 F.2d 787, (1966) do not do so. Furthermore, the cases cited rely upon Thiel v. Southern Pacific Company, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, which points to a contrary conclusion as follows:

'The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84, 86; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680, 707. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.' (Emphasis supplied).

Appellant's contention collides head on with Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), involving an attack upon the same method of providing a jury as the one employed in the instant case, which was based upon the same grounds, and additional grounds, as the attack here considered. It was therein stated:

'With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterward. The prosecutor's judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.

'In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case.'

After the trial had proceeded for a considerable period of time, during a recess out of the presence of the jury, a point was made by defendant and his counsel that he was dressed in prison garb in that on the back of his pants were the words 'Alabama Board of Corrections.' Defendant's counsel moved for a mistrial. Thereafter an extended colloquy ensued among the trial judge, defendant'...