White v. State

Decision Date30 January 1979
Docket Number2 Div. 236
PartiesJohn L. WHITE v. STATE.
CourtAlabama Court of Criminal Appeals

C. Collier Carlton of Carlton & Carlton, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State, appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of robbery. The jury fixed appellant's punishment at imprisonment for fifteen years, and he was sentenced accordingly.

The indictment charged defendant with robbing Lorial L. McCrory, alleging that the property taken from her consisted of a lady's purse and some money and checks of a total value of, to-wit, five hundred forty-six dollars.

The only issue presented by appellant for review is stated by him as follows:

"Whether a state court may legally try a defendant for an offense allegedly occurring at the same time and place as another offense for which the defendant has been tried and acquitted?"

The action of the trial court upon which appellant bases his contention that the judgment should be reversed is found in that part of the record that immediately precedes the actual trial. While the jury that had just been selected was excused from the courtroom, the following occurred:

"MR. THOMPSON: Your Honor, I would like to make an oral motion of autrefois acquit or former jeopardy, and the grounds for said motion I'd like to assign: the defendant in this case, John L. White, has just been tried on a case of robbery. The jury returned a verdict of not guilty and he is again being called on to defend himself in a case of robbery, which was brought out of the same set of facts and circumstances, the same case we just tried. The reason this motion is not in written form is that the attorney for the defendant has not had time out of Court to prepare a written motion. We'd like to ask the defendant be discharged on the grounds he is being placed in double jeopardy and further on the grounds this charge in this case, Number CC-77-117, is arising from the same facts and same circumstances, same day, same instances and facts that came out in case Number CC-116 CC-77-116. We would like the defendant be discharged on the grounds he is being placed in former jeopardy.

"MR. SCURLOCK: Judge, we feel this does not place him in former jeopardy. It is a different victim, different property taken and a completely different action, meaning and threats causing the party to part with the property as alleged.

"MR. THOMPSON: Former jeopardy is the same set of facts, circumstances as we tried in the case Number CC-77-116.

"THE COURT: Let the record show that the fact that the oral motion rather than being a written motion is certainly acceptable to this Court. I can understand why it is not in writing and would have no bearing on this Court's decision. However, the Court is going to deny the motion and go to trial in this case.

"MR. THOMPSON: We would like to except.

"(WHEREUPON, THE JURY WAS BROUGHT BACK INTO THE COURTROOM IN THE PRESENCE OF THE DEFENDANT AND PLACED IN THE JURY BOX.)"

There is no disagreement between the parties on appeal as to the accuracy of the statement of defendant's counsel in presenting "oral motion of autrefois acquit or former jeopardy," that "the defendant in this case, John L. White, has just been tried on a case of robbery. The jury returned a verdict of not guilty and he is again being called on to defend himself in a case of robbery, which was brought out of the same set of facts and circumstances. . . . " There is no disagreement between the parties on appeal as to the correctness of appellant's statement in his brief that the day before the commencement of the trial of the case now before us, defendant was tried and acquitted by the verdict of a jury finding him not guilty of robbing one Patricia Miller. There is no disagreement between the parties that Lorial McCrory and Patricia Miller were both in the store of N. O. Lewis in Halsell, Alabama, on December 21, 1976, when there was a robbery of persons in the store by three black men.

The parties are in disagreement on the issue whether the proceeding in the prior case in which defendant was acquitted constituted former jeopardy as to the crime charged in the case now before us.

Appellant relies upon, and cites as his only authority, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

The Supreme Court in Ashe v. Swenson, in an opinion by Justice Stewart expressing the view of seven members of the Court, 1 established the principle for the first time that the rule of collateral estoppel is embodied in the guaranty of the Fifth Amendment prohibiting double jeopardy. As a result, the Court concluded that appellant, who had been acquitted on an indictment charging him with the robbery of a particular person could not be constitutionally tried on an indictment charging him with the robbery of another person on the same occasion, when the only "rationally conceivable issue in dispute before the jury" in the first case was whether defendant in the second case had been one of the robbers "in the first case."

There is no doubt that this case and the Ashe case are similar to each other in that each involved a trial for the robbery of a particular person after there had been an acquittal of defendant in a trial for the robbery of another particular person on the same occasion. If this case and Ashe are similar in all other material respects, we, of course, must follow Ashe.

In Ashe v. Swenson, it was said:

"Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible." (397 U.S. 445, 446, 90 S.Ct. 1195)

If we are to conclude from the record that the "single rationally conceivable issue in dispute before the jury" in the case in which defendant was acquitted was "whether" he "had been one of the robbers," a reversal of the judgment of the trial court and a discharge of defendant would be required. We proceed to a determination of that question.

As we do not have before us a record of the trial of the case charging defendant with the robbery of Patricia Miller, our information as to the actual issues, and the evidence and proceedings in That case, is limited to what we can glean from the record in the case before us and from express or necessarily implied agreements of the parties. An outline of the essential facts in This case would be helpful to an understanding of the conclusions we reach. We think a detailed statement of the facts is neither necessary nor helpful.

Dan Campbell testified that he was robbed by some men on December 21, 1976, while Campbell was at the Lewis store. He identified defendant as one of the robbers.

Lorial McCrory, the alleged victim in this case, testified that she was a store clerk at the Lewis store on December 21, 1976, and that three black males entered the store and robbed the people in the store. She said they robbed her of the items stated in the indictment.

Becky McCrory testified that she was visiting her sister-in-law Lorial in the store at the time and that three black men came in and robbed people in the store. She saw Lorial give the men her purse. She identified the appellant as one of the robbers.

Patricia Miller, the alleged victim in the case in which defendant was acquitted, testified that she went to the store with "some money, one dollar"; she went to the store alone to get milk and bread; she "got the bread and milk and was waiting for Lorial to finish waiting on another customer in the store at the time." She then handed the dollar to Lorial and received four cents in change, which she put in her pocket and put the milk and bread in a sack. She said that soon thereafter "three colored boys came in the store." She identified defendant as one of them. As she was in the process of leaving the store, defendant stated, while pointing a pistol at her, that she wasn't going anywhere, to come back in the store, which she did. The other two turned and said it was a "stick-up." Defendant had her by her left arm and hit her in the back of the head with a gun. After he hit her he said for her to go to the counter and put her head face down on the counter, which she did. Her testimony continued as follows:

"Q What happened when you got to the counter?

"A He (defendant) said give me your money. I reached in my pocket and pulled out four cents and layed (sic) it up on the counter.

"Q What happened then?

"A Then he the other two and Lorial were on the other side of the counter. They were telling her to give them the money that was in the cash register and Becky they wanted to know if Becky had a purse and if there was any hidden money.

"Q Where were you at this time, standing at the counter?

"A Yes, sir, with my face on the counter.

"Q After you pulled out the four cents, you put your face on the counter.

"A I had my face on the counter when I pulled out the four cents."

Thereafter the witness continued to testify at length both on direct examination and on cross-examination and gave an account of gross physical abuse of her by the three robbers, particularly the defendant, and of a noisy commotion in the store by some of the robbers in their apparently successful efforts to take from others in the store, including two persons who had come in the store after the robbers entered it.

There were other witnesses for the State, but we do not believe that a recital of their evidence has any bearing...

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