Witherspoon v. State
| Decision Date | 21 February 1978 |
| Docket Number | 6 Div. 603 |
| Citation | 356 So.2d 743 |
| Parties | Earnest Lee WITHERSPOON, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
E. H. Hawkins, Tuscaloosa, for appellant.
William J. Baxley, Atty. Gen. and L. G. Kendrick, Asst. Atty. Gen., for the State.
Assault with intent to murder; sentence: twenty years imprisonment.
The undisputed evidence proves that on December 29, 1976, Earnest Lee Witherspoon, Fletcher Williams, David Young, and Johnny Spencer robbed the Parkview branch of the First National Bank of Tuscaloosa. The four had planned the robbery at the appellant's house the day before. Young and Williams "cased" the bank and reported back that there were only four women tellers working there. Young provided the gun, ski masks, and ammunition, and Witherspoon wrote the robbery note to be passed to a teller. The appellant and Williams went to and fled from the bank in Williams' automobile. Young and Spencer were in another vehicle.
All four entered the bank and then pulled their ski masks down over their faces. Six thousand five hundred and eighty-five dollars was taken from the bank. During the course of the robbery, Young fired a shot in the direction of the bank manager, but did not hit him. The four then ran from the bank, appellant and Williams going in one direction with Young and Spencer fleeing in the opposite direction through the drive-in tellers' area of the parking lot. As Young and Spencer ran past the drive-in tellers' windows, Young stopped and fired two shots into the car of Mrs. Mary Hartley, wounding her in the wrist and in the chin.
The report of the robbery and a description of Williams' automobile was immediately dispatched over police radio. Local law enforcement officers spotted Williams and the appellant driving toward Stillman College, and the pair were arrested approximately twenty-three minutes after the robbery occurred. Officers recovered from the trunk of Williams' vehicle the entire proceeds of the robbery along with a loaded .38 caliber Colt pistol, an unloaded .25 automatic pistol, and a box of .38 caliber shells.
The appellant testified in his own behalf and admitted fully his involvement in the bank robbery. He testified that he had agreed to participate in the robbery only if there would be no shooting. He said Young stated there would be no shooting because there were only four women working in the bank. Appellant testified that he removed the clip of ammunition from his gun and put it in the glove compartment of the car before the robbery, and that he carried an unloaded pistol during the course of the robbery. His whole defense was that he did not commit the assault and did not intend to shoot anyone, that the assault was committed independently by Young after the robbery was over and outside the presence of the appellant.
Title 14, § 14, Code of Alabama 1940 (now § 13-9-1, Code of Ala.1975) provides:
"The distinction between an accessory before the fact and a principal, between principals in the first and second degrees, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals, as in the case of misdemeanors."
As to the criminal responsibility of co-conspirators, this court has on many occasions cited Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950) for the following proposition:
Stokley takes its proposition of law from Morris v. State, 146 Ala. 66, 41 So. 274 (1906) which statement of law originated in Tanner v. State, 92 Ala. 1, 9 So. 613 (1890). From reading those cases, it is likewise certain that a person engaging in a joint enterprise is not automatically and equally guilty of a crime committed independently by another participant in the venture. A different crime independently committed and not a forseeable consequence of the purpose of the conspiracy is not covered in the broad and sweeping statements of Stokley, supra. Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976). Tanner holds:
". . . all men are presumed to intend the proximate, natural, and logical consequences of acts intentionally done; . . . If such conspiracy, or community of purpose, embrace(d) the contingency that a deadly encounter may ensue, with the common intention, express or implied, to encourage, aid, or assist, even to the taking of life, should the exigencies of the encounter lead up to result; then, as a general rule, the act of one becomes the act of all, and the one who encourages, or stands ready to assist, is alike guilty with the one who perpetrates the violence. . . ."
The appellant seeks to escape criminal responsibility for the deadly assault committed by his accomplice Young by stating that he did not intend that there be any shooting during the course of the robbery and that he personally carried an unloaded pistol.
The issue is whether the assault in question was a direct, proximate, natural, and foreseeable result of the conspiracy formed. In the instant case, the appellant and his companions were active participants in an armed robbery. One shooting occurred during the robbery itself, and the shooting in question occurred immediately outside the building on the bank premises as the participants were fleeing the scene of the crime. There was no evidence tending to show that the conspiracy had been abandoned when the shooting occurred. In fact, the robbers had agreed to depart in separate directions and meet after the robbery at a designated place.
One who participates in the planning of a robbery, who is present when loaded weapons are distributed to the accomplices, who knowingly participates in a robbery with his armed confederates, cannot later escape criminal responsibility for an assault with such a weapon by one of the accomplices by merely stating that he had unloaded his weapon and did not intend that any shooting occur. Any reasonable person could infer that a shooting is likely to happen during any stage of an armed robbery of a bank. Assault with intent to murder would be a foreseeable consequence of the joint enterprise in which the appellant and his accomplices were engaged. Howell, supra. Thus, the appellant could be properly charged and convicted pursuant to Title 14, § 14, supra, for the assault with intent to murder committed during any stage of the robbery by any one of his accomplices.
The appellant contends that the trial court erred by overruling his plea of autrefois convict without requiring the State to file a motion in response and without having an evidentiary hearing on the plea.
The Supreme Court of Alabama in Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973) held that there is no prejudicial error in failing to submit an unattacked plea of former jeopardy to the jury where there was no injury to the defendant. An appellant cannot be prejudiced by the trial court's overruling such a motion where his claim of former jeopardy is unfounded. Simpson v. State, Ala.Cr.App., 354 So.2d 317 (1977); Kilpatrick v. State, 46 Ala.App. 290, 241 So.2d 132 (1970).
In the instant case, the appellant's plea of autrefois convict shows his prior conviction to have been in a United States district court on an indictment charging bank robbery, whereas the instant trial was in a state circuit court on an indictment for assault with intent to murder. The plea shows upon its face that the two charges are not precisely the same in law and in fact. Regardless of whether the second offense arose during the commission of the first, they are separate offenses against different sovereigns requiring different elements of proof. And, successive state and federal prosecutions arising from the same transaction have been held to be permissible. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Corbo, 555 F.2d 1279 (5th Cir. 1977). We therefore find that the trial judge did not commit error which was prejudicial to the appellant in overruling the instant motion.
A pretrial hearing was held on the appellant's motion for a change of venue which set out only two grounds:
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