Opinion
6 Div. 212.
January 12, 1932.
Appeal from Circuit Court, Pickens County; Benj. F. Elmore, Judge.
Elmer E. White was convicted of assault with intent to rob, and he appeals.
Affirmed.
The indictment is as follows: "The Grand Jury of said County charge that, before the finding of this indictment, Elmer E. White, alias Elmer White, assaulted R. M. Poag with felonious intent by violence to this person or by putting him in fear of some serious injury to this person, to rob the Peoples Bank, a corporation (of Aliceville, Alabama), the said R. M. Poag being at the time the cashier of said bank, and said assault being committed in the banking house or office where the business of said bank was transacted, and where said named person (R. M. Poag) was at said time in the custody and control of the property and money of said bank, against the peace and dignity of the State of Alabama."
The following, among other grounds of demurrer, were interposed to the indictment: "Said indictment fails to charge the offense of assault with intent to rob; it is defective as a common-law indictment and fails to conform to the statutory form in charging either of the offenses of robbery or of assault with intent to rob; it fails to charge that said alleged offense was committed by putting said R. M. Poag in fear of some immediate injury to his person; it fails to charge that said assault or offense was committed against the will of said R. M. Poag; it fails to aver that said R. M. Poag was put in such fear as unwillingly to part with money or property of said bank; it fails to aver or charge that said bank owned or was in possession of property and money at the time said alleged offense was committed."
Witness Poag testified that defendant came into the bank with a gun in his hand, told witness to "stick 'em up," and walked over and put the money in his pocket; that defendant made witness get in vault where he remained until defendant went out; that thereupon witness with others went in pursuit. He was asked what happened when witness saw defendant on the road to Eutaw. Over objection the witness was permitted to testify that he next saw defendant two and a half or three miles out of town and just after he had been shot down; that Kirksey and Wimberly (among others who were there) were on top of him; that witness took from defendant's pocket the currency — between $1,700 and $1,800 — he had taken from the bank, and took the silver from defendant's automobile.
Witness Kirksey testified, over objection, that he approached defendant, drew his gun on him, but, recognizing him, thought he was the wrong man and lowered his gun, whereupon defendant drew his gun on witness and took his gun and made witness follow him down the road, when witness' companions shot defendant, after which defendant was captured by them.
D. D. Patton and M. B. Curry, both of Carrollton, for appellant.
The indictment does not charge the offense for which the defendant was convicted. The demurrer pointing out the defects should have been sustained. Sims v. State, 23 Ala. App. 387, 126 So. 498; Douglass v. State, 21 Ala. App. 289, 107 So. 791; Code 1923, § 4556 (16); Kelly v. State, 52 Ala. 361. Evidence as to what happened at the time of the arrest some time after the alleged assault and several miles from the place of assault was not admissible. Teague v. State, 144 Ala. 42, 40 So. 312; Pitts v. State, 140 Ala. 70, 37 So. 101. Defendant's requested charges should have been given. Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; Code 1923, § 3303; Lyon v. State, 61 Ala. 224.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The indictment properly charged appellant with an assault with intent to rob. Sims v. State, 23 Ala. App. 387, 126 So. 498; Douglass v. State, 21 Ala. App. 289, 107 So. 791; Terry v. State, ante, p. 321, 134 So. 820. Any conduct or declarations of the accused having relation to the offense charged, indicating his consciousness of guilt, is admissible. Palmer v. State, 15 Ala. App. 262, 73 So. 139; Ex parte Palmer, 198 Ala. 693, 73 So. 1001. Evidence of accused evading or attempting to evade arrest and the circumstances thereof are admissible. Horn v. State, 102 Ala. 144, 15 So. 278; Starling v. State, 18 Ala. App. 610, 93 So. 221; Jackson v. State, 11 Ala. App. 303, 66 So. 877. Requested charges refused to appellant are not subject to review, as it does not appear that they were authoritatively indorsed "refused" by the trial judge as required by statute. Stinson v. State, 223 Ala. 327, 135 So. 571.
The demurrers to the indictment were properly overruled. Douglass v. State, 21 Ala. App. 289, 107 So. 791; Sims v. State; 23 Ala. App. 387, 126 So. 498; Terry v. State, ante, p. 321, 134 So. 820.
We find no fault in the rulings of the court permitting testimony as to what occurred at the time of the arrest of appellant; his efforts to evade arrest, etc. Evidence as to any conduct or declarations of the accused having relation to the offense charged, indicating his consciousness of guilt, is always admissible. Palmer v. State, 15 Ala. App. 262, 73 So. 139;. Ex parte Palmer, 198 Ala. 693, 73 So. 1001; Horn v. State, 102 Ala. 144, 15 So. 278; Starling v. State, 18 Ala. App. 610, 93 So. 221; Jackson v. State, 11 Ala. App. 303, 66 So. 877.
It seems that under the holding of our Supreme Court in the case of Stinson v. State, 135 So. 571, 575, we are unable to review the action of the trial court in "refusing" certain written charges, appearing in the record, because "what appear in the record proper [but, here, in the bill of exceptions] as special charges were not, so far as anything appearing in the record [or anywhere else, we interpolate], authoritatively indorsed 'refused' * * * by the trial judge, as required by the statute, and the mere statement of the clerk to this effect is not authorized by the statute." Stinson v. State, supra.
The indictment charged the appellant with the offense of "assault with intent to rob." Code 1923, § 3303. He was found, by the jury, guilty "as charged in the indictment." His adjudication of guilt, and punishment awarded, followed, accordingly. The evidence was ample to support the verdict and judgment, and the motion for a new trial was properly overruled.
We discover, nowhere, prejudicial error, and the judgment of conviction is affirmed.
Affirmed.