580 So. 2d 106 | Ala. Crim. App. | 1991
Mark Edward Bush was indicted for robbery in the first degree in violation of §
On the night of June 22, 1988, Officers Roger Henson and Dennis Hughes of the Decatur Police Department were on patrol when they noticed a vehicle in the parking lot of Alabama Brick and Tile Company in Decatur, Alabama. When the officers pulled in behind the vehicle, the vehicle drove off. The officers then turned on the patrol car's blue lights and spotlight and they proceeded to pursue the vehicle. The officers saw two occupants in this vehicle. When the vehicle did not stop, the officers activated the patrol car's siren. After following the vehicle for approximately one mile, the officers saw the vehicle slow down and, at that time, a black male exited the vehicle and he began to run. Henson then jumped out of the patrol car and chased this individual whom Henson identified later as the appellant. After chasing the appellant for 50 to 75 yards, Henson caught him and a struggle ensued. As Henson attempted to hold the appellant on the ground, the appellant bit Henson on the arm. At some point during the struggle, the appellant grabbed Henson's service revolver, pointed it at Henson and said, "I'll shoot you." (R. 55.) The appellant then hit Henson over the eye with the gun and ran away.
After the appellant was arrested several days later, he gave a statement. In his statement, he admitted taking Henson's gun. He stated that he threw the gun away.
"A person commits the crime of robbery in the first degree if he violates section
13A-8-43 and he:"(1) Is armed with a deadly weapon or dangerous instrument. . . ."
Section
"A person commits the crime of robbery in the third degree if in the course of committing a theft he:
"(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
"(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property."
" 'In the course of committing a theft' embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission." Ala. Code, §
The appellant argues that because he was not armed prior to the time he took Henson's gun, he cannot be found guilty of robbery in the first degree. In Pardue v. State,
Pardue, 571 So.2d at 334 (emphasis in original)."A person commits the crime of burglary in the first degree when, in the course of committing a burglary, the person is armed with a deadly weapon. The statute does not require that the burglar be armed prior to entering a dwelling. Rather, the burglar must be 'armed with explosives or a deadly weapon' at one of three points: 1) 'in effecting entry'; or 2) 'while in [the] dwelling'; or 3) 'in immediate flight therefrom.' Clearly, under the statute, the burglar could conceivably be 'armed' at three different times during the course of the burglary."
Although the appellant recognizes the Supreme Court's decision in Pardue, he seems to argue that the same rationale does not apply in a robbery case such as the one before us where a person steals a gun and thereby becomes "armed with a deadly weapon". We disagree. Although the Supreme Court did not expressly state that the holding in Pardue should apply to a first degree robbery case, we believe that the Supreme Court intended such a conclusion. Moreover, we have held that the first degree burglary statute and the first degree *108
robbery statute are analogous with regard to the "armed with a deadly weapon" provisions. In Buchannon v. State,
Therefore, applying the rationale of Pardue, we concluded that the robbery statute does not require that the robber be armed prior to the robbery. Instead, the robber must be "armed with a deadly weapon or dangerous weapon" during the robbery or the flight therefrom. Here, the appellant stole Henson's gun, pointed it at Henson, threatened to shoot Henson, hit Henson above the eye with the gun, and then fled the scene. Clearly, under these facts the appellant was "armed" during the robbery and during the flight therefrom. This issue is without merit.See James v. State,
The judgment of the trial court is affirmed.
AFFIRMED.
All the Judges concur.