Hood v. State , 18 Ala. App. 287 ( 1921 )

SAMFORD, J.

The theory of the state on the trial was that .the defendant, two other men, and a woman, under a pretext of carrying the party alleged to have been robbed to his home, got him into an automobile, took him to an isolated part of a small park near Gadsden, got up a fake fight between two of the parties, and during the disturbance forcibly and against his will took from the prosecutor’s person $125.

The contention of the defense was that all parties were drinking, and that, when they came to the park, the prosecutor had the car stopped, and he and the. woman went into the bushes alone, and that while there in the act of intercourse the woman lifted the prosecutor’s purse containing the money, and that defendant and the others knew nothing about it.

There was evidence fending to prove both contentions, making the case one for the jury.

There are many exceptions reserved to the introduction of evidence, and which have been submitted to us in brief, without citation of authority. We have examined them all, and none of them present any new or novel propositions of law necessitating particular discussion. We have examined each exception, and in the court’s rulings we find no reversible error. There was some testimony immaterial to the issues being tried, out in each instance the ruling of the court was not prejudicial error.

[1] Exception is taken to this excerpt from the court’s oral charge: “So her testimony goes to you like the testimony of any other witness.” This reference was to the testimony of the woman, who had been arrested originally for the crime and afterwards used as a witness for the state. She was shown to have been a woman whose character for chastity was bad, and other facts indicated á depravity unusual, even for a woman of her type; but the court in its charge, just preceding the sentence excepted to, had fully explained the limitations to be considered by the jury in weighing her testimony, and therefore the foregoing excerpt was entirely correct.

[2] Charge 1 was abstract. There was no evidence in the case tending to prove that Somerville, the prosecutor, was not rightfully in possession of the money taken.

[3] Charge 3 was elliptical.

[4] Charge 4 was amply covered by other given charges.

[5] In order to constitute robbery, violence is not necessary, and hence a charge which predicates a conviction on an act of violence is erroneous, and its refusal is proper. Henderson v. State, 172 Ala. 415, 55 South. 816.

[6] Charge 17 was properly refused. The question was: Did the defendant by force or by putting Somerville in fear take, or aid in taking, the money from his person? Defendant might not have known that prosecutor had any money before he actually took it.

[7] Charge 20 is had. One of the other parties present may have actually taken the money, and still the defendant be guilty if he aided or abetted the crime.

Charge 23 is covered in the given charges and in the oral charge of the court.

We have noted the concluding plea of appellant’s counsel and have given careful consideration to his brief and argument.

[8] We have also noted the character of the woman, who testified for the state, and of necessity, and along with it, we have noted the character of the other associates as shown by the record; but this case was tried by a jury, who had all the parties before them, observed their manner, and heard their testimony. The jury was in a far better position to judge than we. That is where the law has placed it, and there we must leave it. We find no reversible error in the record, and the judgment is affirmed.

Affirmed.

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