Wiggins v. State
| Decision Date | 13 April 1937 |
| Docket Number | 4 Div. 299 |
| Citation | 173 So. 890,27 Ala.App. 451 |
| Parties | WIGGINS v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.
Foster Wiggins was convicted of grand larceny, and he appeals.
Reversed and remanded.
E.O Baldwin, of Andalusia, for appellant.
A.A Carmichael, Atty. Gen., for the State.
The defendant was indicted jointly with Robert Dawkins and Nathan Snowden in an indictment containing seven counts; some of which counts charged robbery and some of them grand larceny. The injured party being Lonnie Smith. From the judgment rendered in the case, Foster Wiggins appeals.
Contention is made by appellant's counsel that the evidence, if believed beyond a reasonable doubt, makes a clear case of robbery and that, therefore, the defendants were entitled to the affirmative charge as to the counts charging grand larceny. This insistence is untenable. Every element of larceny is included in a charge of robbery and where there are counts properly joined, one charging robbery and the other grand larceny, the State is not required in such case to elect which of the offenses it will prosecute and a general verdict is referable to either count. Howard v State, 108 Ala. 571, 18 So. 813.
When Lonnie Smith was being examined as a witness for the State he was asked by the solicitor this question: "I will ask you if Foster Wiggins testified or said at that time then when you came back to the car and said to him and Snowden that it was all a plotted piece of business, that he then got out of the car and said, you were a dam lie and knocked you down?" This question was asked for the purpose of impeaching the testimony of the witness Foster Wiggins, who testified in his own behalf and in behalf of the other defendants. No sufficient predicate was laid for the introduction of this evidence and, therefore, the action of the court in overruling defendant's objection was error. A witness cannot be impeached by proving a statement different from the one sworn to on the trial, unless he has been examined as to his having made such statement. Atwell v. State, 63 Ala. 61. The above is the universal rule followed in this state in numerous cases cited in Alabama Digest, Vol. 19, Witnesses, k388(2).
When Robert Dawkins was being examined as a witness in behalf of himself and the other defendants, he was asked by the solicitor: "Isn't it a fact that you were convicted in the Circuit Court of Escambia County, Florida, at Pensacola, for bootlegging and sentenced to the penitentiary in that State?" This question was properly objected to, the objection overruled, and exception reserved. Under sections 7722 and 7723 of the Code of 1923 which sections are usually construed together, no objection must be allowed to the competency of a witness because of his conviction for any crime, except perjury or subornation of perjury; but if he has been convicted of a crime involving...
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Sims v. Callahan
...Assault and Battery--Gillman v. State, 165 Ala. 135, 51 So. 722; Collins v. State, 3 Ala.App. 64, 58 So. 80. Bootlegging--Wiggins v. State, 27 Ala.App. 451, 173 So. 890. Selling Cocaine--Pippin v. State, 197 Ala. 613, 73 So. Distilling, or otherwise violating prohibition laws--Lakey v. Stat......
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Ex parte McIntosh
...moral turpitude are: 1) assault and battery, Gillman v. State, 165 Ala. 135, 51 So. 722 (1910); 2) bootlegging, Wiggins v. State, 27 Ala.App. 451, 173 So. 890 (1937); 3) distilling or otherwise violating prohibition laws, Lakey v. State, 206 Ala. 180, 89 So. 605 (1921); 4) doing business wi......
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Gholston v. State
...offenses under prohibition laws, including that of bootlegging of whiskey, have been held not to involve moral turpitude. Wiggins v. State, 27 Ala.App. 451, 173 So. 890. It is to be noted, however, that exceptions were made as to the possession and processing of prohibited liquor, and even ......
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Flournoy v. State, 8 Div. 606.
...counts in the same indictment with larceny, McDaniel v. State, 30 Ala.App. 447, 7 So.2d 583, robbery with grand larceny, Wiggins v. State, 27 Ala.App. 451, 173 So. 890, murder with robbery, Smelcher v. State, supra. It is out opinion therefore that the trial court's action in overruling the......