Summary
In Helms, the court held that where the evidence showed that defendant and one Sanders forced the witness, at gun point, to give defendant and Sanders the money from a service station cash register, the court did not err in permitting the witness to testify that Sanders took the witness into the hallway and, while defendant was not shown to have been present, Sanders told the witness to lie down and asked if the witness wanted him, Sanders, to shoot the witness.
Summary of this case from Edwards v. StateOpinion
8 Div. 669.
March 2, 1960. Rehearing Denied April 5, 1960.
Appeal from the circuit Court Circuit Court, Marshall County, Edward N. Scruggs, J.
Smith Moore, Montgomery, for appellant.
The State must prove the charge as laid in the indictment. Accused on trial is required to answer only the specific charge contained in the indictment. Rather v. State, 24 Ala. App. 452, 136 So. 483; Geeter v. State, 35 Ala. App. 207, 45 So.2d 167; Valverdi v. State, 21 Ala. App. 606, 110 So. 594; Prentice v. State, 24 Ala. App. 587, 139 So. 437. Allegations in indictment and proof must correspond, and a material variance is fatal. May v. State, 22 Ala. App. 278, 114 So. 788; Hammett v. State, 25 Ala. App. 371, 146 So. 884; Booker v. State, 24 Ala. App. 179, 132 So. 70; Stone v. State, 115 Ala. 121, 22 So. 275. Variance between allegations and proof as to identity of victim of robbery requires reversal. Coffey v. State, 244 Ala. 514, 14 So.2d 122; Pace Cox v. State, 69 Ala. 231; Parks v. State, 21 Ala. App. 177, 106 So. 218; Johnson v. State, 111 Ala. 66, 20 So. 590; McCoy v. State, 232 Ala. 104, 166 So. 769.
MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for State.
Fact of service of indictment and venire on defendant prior to trial cannot be raised for first time on appeal. Davis v. State, 229 Ala. 674, 159 So. 209. No substantial variance between pleading and proof is presented by using a portion of party's Christian name or initials in indictment and proof showing party's full name. Thompson v. State, 48 Ala. 165; Hollis v. State, 37 Ala. App. 453, 70 So.2d 279. Proof of so much of indictment as shows that defendant committed substantial offense specified therein is sufficient as against motion to exclude state's evidence on ground of variance. Fuller v. State, 39 Ala. App. 219, 96 So.2d 829.
The appellant was indicted for and convicted of the offense of robbery. His punishment was fixed at ten years imprisonment in the penitentiary. He appeals from the judgment of conviction.
The tendencies of the state's evidence are that James Franklin Teal was employed as a service station attendant by R.E. Holman. On the night of October 2, 1957, while Mr. Teal was alone at the station, the defendant and one Sanders forced him, at gun point, to give them the money from the cash register, which amounted to $148.25.
We have carefully considered the evidence and it is our conclusion the court properly overruled the defendant's motion to exclude the state's evidence, on the ground the state had failed to establish a prima facie case, made after the state had rested its case.
A further ground of motion to exclude the state's evidence was that there was a variance between the pleading and proof, in that the indictment charged defendant with the offense of taking money belonging to "R.E. Holman from the possession and custody of Frank Teal," while the evidence was that the money was taken from "James Franklin Teal." The motion was denied by the court.
To be material, a variance as to the name alleged in the indictment from that proved by the evidence must be such as to be misleading or substantially injurious to accused in making his defense, or to expose him to the danger of a second trial on the same charge. Johnson v. State, 34 Ala. App. 623, 43 So.2d 424. See also 42 C.J.S. Indictments and Informations § 265, p. 1287. There was no material variance between the allegation and the proof, and the motion was properly denied.
It is stated in brief that the record fails to show that a copy of the indictment and of the special venire was served on defendant as required by Title 30, Sec. 63, Code 1940.
The record shows that the court ordered "that a list of all jurors constituting the venire in this case including those this day drawn as provided by law together with a copy of the indictment in this case be forthwith served on the defendant." The record does not show the Sheriff's execution of such order. "However, it is not necessary that the order or the fact of its execution appear in the transcript unless some question thereon was raised before the trial court and there decided." Arrington v. State, 253 Ala. 178, 43 So.2d 644, 647.
The evidence as to the joint participation of Helms and Sanders in the robbery rendered admissible against defendant Mr. Teal's testimony that after he gave them the money Sanders took him into the hallway leading to the office and, "told me to lay down on the floor on my stomach. He asked if I wanted him to shoot me," though the statement was not shown to have been made in defendant's presence. West v. State, 168 Ala. 1, 53 So. 277; Lockett v. State, 218 Ala. 40, 117 So. 457; Cline v. State, 25 Ala. App. 433, 148 So. 172.
There was no request for the general affirmative charge nor motion for a new trial.
The judgment of conviction is affirmed.
Affirmed.