*1 plea reporter, then judge and induce- Clearly this coerced. guilty the minute not of concepts advanced quoted Under all above. Boykin Supreme Court 1968), (Feb. Ala.Sup., supplementation of interstitial open review.
judgment and the is reversed below remanded.
cause is and remanded.
Reversed
JOHNSON, J., concurs result foregoing opinion.
Part III of the Noel Brown & McMillan and James Opelika, for
Fletcher WHITE
5 Div.
Court Alabama. 30, 1968.
Jan. Denied March Robt. Miller, Atty. Gen.,
F. *2 State Robert Howard testified of at the time deputy sheriff that he was a he met Mr. alleged robbery; that John- subsequent to Restaurant son at Barnes telephone call receiving Johnson’s Howard robbed. plaining that he had been go to the site of that he did not Judge. JOHNSON, alleged night robbery that Johnson; robbery day with did there indicted Appellant was Alabama, he dis- upon investigation the site County, that of Lee Jury of the Grand to credit cars which аppointed papers and covered 15, was some Counsel May on 16, his those of May prior to were identified as represent appellant on Johnson. guilty, plea of Upon a arraignment. County, Lee Deputy of Bill Sheriff on 22, 1967, and May had on trial was day appellant the that he arrested testified of a verdict returnеd date same robbery. alleged He said following the at set was charged. Punishment guilty as possessions appellant’s personal that all of Sub- penitentiary. in the Stаte years ten he was him when were removed from for a new sequently, appellant moved possession were placed jail and that in his appeal. Hеnce, denied. which was bill. three bills and $1.00 $20.00 Frederick was first witness State’s that he Washington testified Ollie Weems Friday, on 6, that who testified January Scott helped a car sell on Johnson Johnson joint into a beer January he “went 1967;' where that he him to bank drove * * * restaurant;” he that given near Barnes check which was cashed Johnson which possession had in his about $340.00 that he drove payment car and for the proceeds an automobile of a sale of was the him. joint” he left a “beer where to Johnson afternoon; that on cross-examination, which he sold that that he he On stated joint” he sat down entering the “beer on P.M. left between 4:00 and 5:00 Johnson appellant а bought appellant; that he and question. the date in whiskey. half-pint further testi- Johnson for the Paul testified' Willie Workman said, to go down appellant fied “Let’s that joint” named he ran a “beer defense that appellant and an Johnson, house”. some Place; January Danny that on and Paul’s in an joint” man unidentified left the “beer appellant and he saw both Johnson Opelika, back toward automobile went fifty there; that left alone about Johnson up a turned to the left and went back arriving; (Workmаn) that he minutes after three dirt of about road for a distance thirty minutes later saw Johnson he as how then related miles. Johnson after he that fifteen minutes Club the car” and sub- “snatched out was two “one or arrived he saw Johnson appellant beating by jected to a cross-examination, Work- On more” leave. party. stated unknоwn third Johnson P.M. testified that around 9:30 man when and that he was knocked unconscious him appellant paid in and came money finally regained he consciousness $28.00. аp- billfold, amounting that was in his $320.00, missing. proximately was Appellant contends Johnson came until he then testified that he walked denying abused its discretion sheriff. where he called the to a house request for a continuance. on cross-examination, Appellant was arrested testified Jan Johnson May 9, 1967; arraigned uary on joint” he was the “beer at about arrived at he ap was which counsel by a the date on 7:00 driven there P.M.' and that he was him; tried he was represent pointed driver, taxi Mr. Weems. resеrve an Thus, May were six “MR. McMILLAN: We
days
appointed
exception.”
from the time
counsel
represent appellant
of the trial.
until the date
Appellant
thаt the
contends
district attor-
position
The trial court is in
better
ney’s
statement constituted
violation
determine
whether or not
continuance
Alabama,
as
*3
case,
granted
particular
should be
in a
amended, which states:
the sound
such determination lies within
therefore,
and,
the trial
discretion of
indictments,
the
“On
trial of all
com-
сlearly
it
will not be disturbed unless
is
plaints
proceedings,
or other criminal
the
apparent
from the record that
its dis-
person
shall,
request,
on trial
at his own
State,
cretion was abused. Hallman v.
otherwise,
competent
but not
wit-
be a
857;
Ala.App.
36
61
;
So.2d
re-
ness
his failure make
such
Jackson
State,
581;
Ala.
229
155 So.
Smith v.
quest
any presumption
shall not сreate
302;
State,
Ala.App.
38
80 So.2d
him,
against
subject
nor be
the
State, Ala.App.
Burton v.
43
187 So.2d
counsel. If the
other
solicitor or
We find no
abuse of the
such
prosecuting attorney
any
makes
comment
discretion
court’s
here.
concerning the
failure
tes-
defendant’s
tify, a
granted
new trial must be
on mo-
argument
At the
the
conclusion оf
thirty days
tion filed within
of counsel for the
defend
State and for the
of the judgment.”
ant,
the
occurred:
State,
In Swain v.
Ala.
156
275
So.2d
please
“MR. McMILLAN:
If it
the
part
jury:
the
solicitor said
Cоurt,
we have motion we would [like]
to make
presence
jury.
outside the
of the
denied,
you
“I submit to
that it is not
not a
word come from this stand
Gentlemen,
“THE COURT:
the case
charge
rape.”
denied
among
is not over. Don’t talk about it
yourselves
all,
try
any
don’t
reach
Supreme
The
Court of Alabama in affirm-
conclusion about it at this time. Gentle-
ing
conviction,
part
the follow-
men, just go
jury
room and relax
ing:
case,
and talk
anything
or
any
don’t talk
try
at all. Don’t
reach
prohibit
prose-
“The statute does not
сonclusion about it.
drawing
cutor from
reasonable inferences
case,
presented
from the evidence
in a
“Whereupon,
retired to
and statements
еvi-
effect that the
jury room.
dence is uncontradicted or undenied are
Very well, gentlemen,
“THE COURT:
prohibited
by the statute.”
ready
you.
am
to hear
I
Viewing
appears
the statement as
please
“MR. McMILLAN:
If it
bar,
we
that it
the case at
find
court,
grant
we
move
Court to
proper
awas
comment
the fact that the
case,
grоund
mistrial in this
presented
evidence
the State was uncon
Solicitor,
argu-
in the course of his
State, supra;
troverted.
Swain v.
Welch
ment, stated that the
that Mr. John-
fact
State,
901;
263
Little
Ala.
son had been robbed was not contradicted
State,
Ala.App.
field v.
“THE your State, COURT: I overrule mo- Andrews v. 174 Ala. 56 So. tion. Shadle v. Ala. diligent
After search of the record assignments of
error are without merit. therefore, is, judgment in this cause hereby
due to be and the
Affirmed.
JOHNSON, Judge. observe, opinion upon rereading We our Blanton, Montgomery Morel and Fred *4 cause, in this with, concluded “After Birmingham, for a diligent search of record assignments are of error Gen., Atty. without Lloyd merit.” Hart, G. for
We wish to amend this conclusion
read: PRICE, Presiding Judge. only We have not charges examined the appeals Defendant from a alleged by appellant but, in accordance conviction murder in second de- Alabama, 1940, gree twenty yеars. with a sentence of we have examined entire record have now re-examined the same and find The evidence for tends to state no error therein. 23, 1965, July show that on the Diane
Application
gave
party
Sanders
at her home
overruled.
City.
guests
Pratt
Several invited
were
present
“Sandy
boys
and somé
Bottom”
camе without
There
invited.
were
arguments among
persons
who were
Sandy
invited about getting rid
boys.
fight
Bottom
A
yard
started
alley.
Young-
moved
Alfred
alley
blood came back
and said
him in the collar. told Young- Sanders let blood to Sam but he alone wouldn’t up turn him loose. Robert Dubose came and a Youngblood scuffle ensued between and deceased with and Dubose Sanders time, trying separate At them.