342 So. 2d 1367 | Ala. Crim. App. | 1977
Appellant was convicted of assault with intent to murder Richard Stubbs and sentenced to imprisonment for twenty years.
The facts, as shown by the evidence, are almost identical with those narrated in Brown v. State, Ala.Cr.App.,
As in the other two cases, the evidence showed that the said Gregory Brown, Zane Brown and their brother Leroy Brown robbed Richard Stubbs, the attendant at a gasoline station, thereafter compelled him to get into the automobile driven by one of the robbers, took him into the country on the outskirts of Montgomery and there shot him in the head and left him as if dead. Stubbs survived and was able to testify and definitely identify the three Brown brothers as the felons.
The principal points raised on this appeal are (1) that the trial court erred in overruling defendant's pre-trial motion to suppress evidence taken from the automobile used by the robbers and searched by the officers, and (2) that the in-court and lineup identifications by Stubbs of defendant and his brothers were tainted in the process of showing Stubbs photographs, and that the court was in error in allowing testimony by Stubbs as to his identification of defendant and his brothers. We adhere to what we held in the other two cases as to both points.
Appellant contends the trial court was in error in overruling defendant's objection to a question seeking the repetition of facts already stated by the witness and relies upon Smith v.Dillard,
While counsel were interrogating Richard Stubbs, as a witness, out of the presence of the jury, as to his identification of photographs of appellant and his brothers, the trial court also asked some questions of the witness. Appellant urges that such action was error. It is clear to us that there was nothing in the trial court's questions *1369
that would subject its action to any exception to the general rule that it is the trial court's right, and sometimes its duty, to propound questions to witnesses. Jones v. State,
In the light of our duty to search the record for any error prejudicial to appellant, we note the possibility of some question whether the prior conviction of appellant for robbery constitutes former jeopardy. It does not. The robbery for which defendant has been previously convicted was complete long before the victim was shot. The shooting was no part of the robbery. As inexplicable as the shooting was, without any testimony by defendant and the testimony of Stubbs pointing to its unprovoked cold-bloodedness, it forms no part of the other crime so as to place it within any group of cases in which it has been held that two or more related offenses constitute but a single crime. In applying Code 1940, T. 15, § 287, we held inPoe v. State, Ala.Cr.App.,
"Here the robbery, in legal contemplation, was complete by the time McLain drove up. Hence, Poe's claim of double jeopardy was properly denied in the circuit court."
We find no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.
The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby
AFFIRMED.
All Judges concur.
