McColston v. StateMcColston v. State
Prom a judgment .of conviction -for robbery, and a sentence of 10 years’ imprisonment in the penitentiary, defendant apрealed.
The controlling question here presented is that of the identity of this appellant, as be- - ing one of the three men, who perpetrated the crime complained of in the indictment. Upon this question ihe state introduced three witnеsses whose testimony, upon this trial, tended to identify this appellant in this connection. It may be, as contended by defendant, thаt the testimony given by the state witnesses' upon this trial conflicts in some material respects with the evidence given by them upon a former trial. It may also be true that discrepancies and contradictions are apparent, but it cannot be seriously insisted that the evidence was insufficient to be submitted to the jury for its consideration, and that it was the prerogative of the jury, and not the court, to pass upon the weight and credibility to be accorded to the evidence. On the important question' of the identity, of this defendant as being a participant in the crime, we note from this record that A. G. Jones, the alleged injured party, testified:.
“They had their guns on me when they took me out of the wagon. I know this defendant here; he was one of them; I rеcognized his voice and size. I had been knowing him ever since I been going to Westfield, ever since July.”
And on redirect examination he testified:
“From July up until that time I had seеn Colston often. I just got to know him, got acquainted with him, seeing him you know, regularly buying stationery from me, and trading with me. I had been seeing him until just a few days before that happened.”
State witness Ezra Jones on this question testified: /.
“I know S. B. Colston, I recognized his voice and his size, this defendant here. He was one of thеm. They had three guns, pistols. They threw them on him, on my brother A. C. Jones. * * * I recognized this defendant; he is one of them.”
W. A. Hale, state witness, testified:
“I know this defendant, Colston, and have been knowing him for a year. Well they— this fellow here and two others — was pulling this fellow Jones from the truck, pulling him out. This defendant was one of the men that was pulling him out.”
It can be seen from the above-quoted testimony, and other like import, that thе evidence tended strongly towards identifying the defendant as being one of the perpetrators of the alleged crime. There was no dispute or conflict on the trial of this case that the offense complained of had been committed by some one.
The defendant contended that he took no part whatever in the robbery, and insisted that he was in the/ сity of Birmingham, which was far removed from the scene of the crime, at 'the time of its commission. He testified-to-this fact himself and offered the testimony of other witnesses whose tes *593 timony tended to support his alibi. This material conflict was a question for the jury to determine. On the trial of this case, several exceptions were reserved to the rulings of the court upon the tеstimony. However, as no error of a reversible nature appears in any of these rulings, a discussion thereof need not be indulged.
The record discloses that the solicit- or, in his argument to the jury in this case, stated:
“He is guilty of the crime of highway robbery.”
There was objection to this statеment and motion was made to exclude it, but the court overruled the defendant’s objection, and also motion to exclude, whereupon the defendant duly reserved an exception. The emphatic statement here complained of would certainly have been improper, if made by the court, or even if the court had given an intimation to this effeсt. Attention is directed to the case of Rowe v. State (Ala. App.)
The motion for new trial presents no question not adjudicated upon the main trial. As statеd the evidence presented a jury question and, in the opinion of this court, was ample to sustain the verdict and judgment. Refusеd charge 3 is not the law. This charge is predicated upon “a single circumstance,” and not upon the whole evidenсe. Moreover, where twq conclusions can be drawn from the evidence, it is for the jury, to say which, conclusion they will adоpt, and the court is without authority to instruct them; it is their duty to adopt the one or the other. Davis v. State,
The unnumbered charge refused to defendant is not the law, as the facts and circumstances, surrounding the arrest and apprehension of defendant, could not shed any light upon whethеr or not he participated in the crime charged, which is alleged to have-occurred several days prior. This charge was properly refused.
We do not find any error of a reversible nature in any of the rulings of the court, nor upon the record proper, therefore the judgment of conviction appealed from' is affirmed.
Affirmed.
Notes
Ante, p. 119.