Smith v. State Court Opinion

    rlly apl)llc:{lrle Io lne ln-

'!tte, 36 Ala-.A.pp. 63+, 6l
court stated:

is not available as a de-

n u'ho has the intent and

t a crinrinal of fer-rse and
,es commit the esserttial

3 it, merely because an

rw, in his efforts to se-

igainst such person, af-
rnity to commit the crim-
*.r'

are the holdings of orrr

t Bosu'ell z,- Slole, 290

.2d 592 and Joltttsort t'.
2S5 So.2d 7A-

or in the rccord and the

)ncur.

ilichael SUTTER

Y.

i of Alabame-

rah Michael Suiler.

;c t634.

lourt of AI:tlr:rtna-

b- 5, 1976.

l Court of Criminal Ap-

.on, Errtcrprise, for peti-

rte-

l'(drs ru rcrl(w ililu rc\rs€ lilc Jlt(lgrncnr
rrrd dcci.ion of tlrat Corrrt irr.!,,it", -.'
.9to!e, 57 ,\la..ApP. 

-, 
326 So.Zd 675.

Writ dcrried.

IIEFI-IN, C. J., and BLOOD\\'ORTH
F,\L'LK\ ER arrd I'-I{ RRY, JJ., .on.ur.

critt'riolr for dcter-

<:ri,l ur.l.rrtc is ?aft

Bruce L. SMITH, alias

Y.

STATE.

3 Div. 383-

Court of Ct'irttitt:tl -\1r.1r:rls of ,11:rbatna.

Dt'c. 9, 1975.

Ilclrc:rririg I)t'niql .Ian. 20, I976.

I)cfcrd:rnt u'as cottvicted l-refore the

Cir-cuit Court, llorttgolrrcr)' Courlty, David

\\/. Crosland, J., oI rol-,lrcr1', arrd he appeal-

ed. 'fhe Court of Crinrinal Appcals, De-

C:rrlo, J., held that acts done and state-

rncr.tts nrade inrnc<liatety follos'irlg robbery

lcre;rdr:rissible as part of res gcstae, that

it uas rlot error to dcny dcfettdant's mo-

tion for :uistrial on ground that trial
jrrdge's qrrcstionitrg of d"f"rrd"nt,buut
\'arioris ;ispects of case constitutcd expres-

sion of opinior.r on defc:ldant's credibilit.v

as n itnrss, tl,"t 
"..dsll.-s-\'as-tx{licic!! 

to

jr:stify filrling of conrrrron design to rol'
that it ri'as not crror to rcfuse dcfendant's

rcque stt-d Nritlen instrtrctions, :rrld that ev-

idcnce uas sufficient to sustain conviction'

Af f irnred.

Ccrtiorari tlctried, 295 Ala. 
-, 

326

So.2d 6q6.

6f a givrn transaction; if act done, or
stiitrii)clrt nrade, learls up to, or is result
of rnain fact, or tcnds to slrtd light uiron,

6r gites character to occurrence constitut-
ing gist of inquiry, then it is admissible as

part of res gestae.

2. Criminat Law @364(3)

\\rl-rere defendant and his codefendants
had not driven rnore than a block before
they returned to scene of robbery and
pulled r-ictim's head to car and rolled rvin-
dorv up on victim's neck, put gun to his
head and delivered blow to it, acts done
and statements made at that time u'ere not
only connected to robbery by time factor,
but ruere resrrlt of main fact, shedding
light upon and giving character to it and
thus s'as part of res g€stae and properly
admissible.

3. Wilnesses F216(2)

Trial jrrdge has right to question rvit-
ness about larious aspects of case; €xer-
cise of this prerogative does not transcend
his authority or inr.ade rights of accrrsed.

4. Criminat Law 6656121

It rvas not error in robtrery prosecu-
tion to deny defcndant,s motion for mis-
trial on ground that trial judge's question-
ing of defendant about aspects of case con-
stitrrted expression of opinion on defend-
ant's credibility as u'itness rvhere judge ad-
monished jury, both in his preliminary re-
marks and oral charge, that- jurors u'ere
not to regard any conrrnents made by him
or any other nonrvitr)ess as evidcnce.

5. Conspira cy G=24

Although crlll1lnlg_gl_ jyIpg:e on
part of conspirators to act criminally must
exist at time crinre rras comrnitted, such
combination rnay be formed in a flash and
It need not be shou,n that specific act com-
plained of s'as by prcarrangenrent. Code
of .{la- Tit. 11, S 14.

/,^\-
(( o.)Crimtnal Law Fs52(2)\-// l'g$lqig:_grd co:r:n:rrnity of prrr-

.llr.. ,. r_
->2b So.2!--43Yt

curnstantial evidence or inferrcd fronr ccin-
AlLglEI_tArElrE Codc of Ala., 'lit. 14,

s 14.

Defendant's conrplicity,,r'as question
for jury in robbery prosecrrtion.

commission of act, rvere potent circum-
stances frorn u'hich participancy could be
inferred and such er.idence rr-as su{ficient
to support finding of cornnron design to
rob. Code of .{,1a., Tit. 1-1, S 14.

9. Criminat Law €=755, 829(l)

\\rlrere dcfcndant's rcquesled u'ritten
irrslrrrctiorrs in rohbcry pro:rcution \\'ere
covered by cotrrt's oral charge or .*.ere in-
lasive of jury's provirrce, their refus;rls
\\-ere proper. Code of ,\1a., Tit. 7, S 273.

10. Robbcry C-24.t(1)

In robbcry prosecrrtion, evidence u'as
srrf ficicnt to srrstain corrvic'.ion.

James W. Garrett, Jr., \Iontgontery, for
appcllant.

William J. Raxley, Atty. Gen., and C.

Larvson Little, Asst. Atty. Gen., for the
State, appellee.

DeCARLO, Judge.

Robbery; ten )'ears.

The indictnrent in this case charged:

" . Bruce L. Snrith, alias
feloniously took $-5.00 in

iau'ful currcncy . , thc propcrty'
of Arlin Srnitlr, fronr his pcrson, and
:rgainst Iris s'ill, by vio!crrcc to his pcr-
:c,n, or b)'1,,,t:ittg l,irr irr st:,'lt ftl,r as

c- - l. Criminal Law C:363

,ah Jtichacl Suitcr for Tirnc is .not otrly

C, ,.:'t o{ Cri:;li:t;r'l -\p- :''l:'i:tS ',i ),, ih,-'r 1l:i:lg

Y.'rht
8. Robbery o=ts, z4.t(4) <#i{r,r\ d-ijW*
durins affied jr*U
hgll.;,,.;qrl; horvever, srrch facts as his g P
p@hiscompa,ion- *[ 

r
ship, and trT-co"auctlqJdtore, and after



t.

682 'Ala.

unwillingly
,t

to part with the same

In support of this charge the State

presented the following testimony.

On Aprll 27, 1974, Arlin Smith's car

stalled near the interstate in Mongomery,

Alabama. After leaving his car, Smith

walked to nearby Cortrt Strect where a ctr,

occupied by three males, pullecl into a

clriveway in front of him. One of the trio

askecl him for a cigarette. When he went

over to the car the following occurred:

326 SOUTIIEX,N B,E?ORTER, 2d SER,IES

the car Douglas aske<l for the loan. Davis f'
gave this account of what followed, i

"A{ter that, he [Arlin Smith] said,'Man I

I ain't got none. I ain't got no money.' i
So they kept talking, and then he saicl, 'l :

got one five dollars.' And Bruce told him i
he had change, and he hancle<l it to him; i
and then he said he didn't have change,

So then we backed out and was fixing to I
go. We went trp on Marshall Street-"' i
(Brnckctert mnterinl a<ldcd)' l,
Davis cleniecl the three had any ^g,r;fi

ment to rob and statecl he did not point a i {.

gun at Arlin Smith. F I

" . One asked me Ior a dollar in
my pocket, and I told him I didn't have

' one, Bncl then he rnicl, 'give nre n clollnr

in your pocket'. And I said, 'Well, I
' don't have one.' And the guy sitting on

this sicle of the car, the passenger, saicl,

'Let me sce your billfold,' And I didn't

say anything' And the driver stuck the

.gun up and said, 'The man wants to sec

i your billfold'. So I pulled my billfold
out of my pocket and said I didn't have

. btrt five clollars, so they took my billfold
and took the five dollars and gave me

my billfold back. And the guy said he

was going to {ind a store or something,
' 

so they left."

Arlin Smith stated that the billfold was

turned over to the aPPellant.

Detective Kenneth A. Hitson of the

Montgomery Police Department reccivecl

the robbery complaint on the afternoon of

the inciclent. I{e testificd thitt Smith rclat'

ed rvhat had occurrecl and gave him the li'
cense number of the car, A line-up rvas

conducted on the follorving Sunday and

I S-itt identified the appellant.

At the conclusion of the State's case the

appellant's motion to exclude \\'as over-

ruled and the follorving testimony was of-
fered.

. George Davis, a codefendant, testified

that he met the appellant only minutcs be-

forc the a'lleged robbery. I{e had becn

asked by George Douglas to drive the cnr

to appe'llant's ltouse. Whcn thcy rrrrived,

Bruce Smith got into the car anct Davis

continued to drive. Douglas was sitting on

the back seat and appellant sat next to

Davis in the front seat. While driving on

Court Street, Davis saw Arlin Smith and

remarkcd he knew him. One of the others

called to Smith and rvhen he came over to

In a gtatement made to the police, Davis

admitted showing the gun to "the boy,"

Arlin Smith. FIe stated the reason "thc

boy" gave Bruce the money was, "I reckon

he rvas scared. I-Ie said he could have thc

f ive dollars, 'just let me go home.' "
The appellant testified that just before

they encountered Smith, Davis remarked

he knew him and Douglas lvho was sitting

on the back seat called to Arlin Smith:

" . , ,' George Douglas,

said, 'Hey, man, loan me a dollar,' So.'

he sa!d, 'I don't have no money,' just likc

that, So he said, 'Loan me a dollor,

nrnn,' LIe said, 'I don't have no moneY,'

So he saicl, 'Man, loan me a dollar,' So

he said, 'Well, man, all I got is five dol'

1ars,' jttst like that' 'All I got is livt

clollars,' and he did his hands something

similar to this (indicating).

"So he went in his pocket and pulled hir

rvallet out; and when he pulled his rvll'

let ottt, he openecl his wallet up, and hil

wallet had a 1itt1e money compartnlerlt

with a bill compartment' He opencd ir

up just like that and said, 'All I've got it

five ciollars,' jtrst like that. So, I slid,

'Look here, man, I might have sonrt

chnngo,' So I run mY huncl ln mY PocI'

et, ttnd I went through mY bills, and I

clidn'
knorv
cl i cln't

saic!,

saiC,

eet sC

"So I
car,
:rnd t
rvas, )

ccl thr
'We'll

Appel
lin Smi,
this occi

Uncler
1940, Iir
quircd t
appcl lant
dtrtl' rve r

During
I'an to rc
clrovc a

Appellarl
aftcr thc
of the rc
jury's prr
Smith th,
turned, a

occurrecl I

t'So ltc
tol<l rl

coulcln'j
metor
hirn .li l

thing.
btrt tira
Antl itn
car; so

h:rir anr
rollecl tl

Llter 'l'
fy cver :r1

irrg facts r

At al.rou

tion, Wigr.

.I
t
j

I
I
d
i.r
it

,i
,r'i

I

I
,I

I

I

:

y.Sljf.,,
nl: .'

lI4. ,',r
!; \h.i r{. ,'',,



gct sontc charrgc,' just likc that.

"So hc handed tiic five dollar bill in thc
car. llc handcd it to nle in the car;
and by nre sitting on tl're side that he
rvas, I took the five dollar bill. I acccpt-
ed the fivc dollar bill from him, I said,
'We'li go get some change,' so rve lcft

,t

Appellant statcd hc did not threatcu Ar-
lin Smith and dcnied seeing the gun orl
this occasion. LIc admitted secing it iater.

I

Undcr T, 1.5, S 389, Codc of Alalnrr:n
1940, Rccornpilcd 1958, this court is re-
quired to cxanrine all rulings adverse to
appellant's cause and in deference to that
duty we reviewed the followirig,

During Arlin Snrith's testinrouy, hc bc-
garl to recount what occurrcd after the trio
dfove away and subsequently returned,
Appellant objected, arguing what occurred
after the origir-ral cncounter \4,as not part
of the res gcstae. In a hearing out of the
jury's prcsence, the court concludecl it was.
Snrith thcn testified that rvhen the car rc-
turncd, appcllant approached hint and this
occurred :

"So he carne back to the corner, and hc
told me-something about f irst hc
couldn't find a store, and thcn hc told
me to come over to the car, and I told
him I had to go honte. He saicl somc-
thing, I can't remember what he saicl,
but that's whcn he grabbcd ure by thc
arnr and told nrc to come ovcr to thc
car; so rvc go down, and he pulled nty
hair and pulled my head into thc car and
rolled thc rvinclow up on nry neck,,,

Latcr Ted Wiggins rvas ailorved to testi-
fy over appellant's objection to the follow-
ing facts rclating to the same incident.

f, At 
"tor, 3:30 P. ivl. on the <Jay in qucs-

$ion, Wiggins saw a car occupied by three
\

AIa. 683

tlrc car ou tjte passcnger sidc next.to the
drivcr. At that time, Snrith bent over near
thc car rvindorv and the man grabbcd
Smith's hair. I-ic puilcd his head into the
u,inclorv arrd rolled the window rlp on
Snrith's neck,

Wiggins statcd ire sarv thc driver point a
Fun at Snrith an<[ tirc nran ou thc back seat
dcliver a blorv to Snrith's head. At the
time, Wiggins \\,as standing in his yard
and yclicd at thc group scveral tirncs,
Snrith was thcn rclcased arld the trio clrove
uway.

t1] 'f inre is not tire only critcrion for
dctcrmining whethcr a thing said or done
is a part o{ a givcn transaction. If the act
done, or statcnlcllt nrade lcads up to, or is
thc rcstrlt of the nrain fact, or tends to
shcd light upol1, or gi,r,es charactcr to the
occurrcnce constituting the gist of the in-
cluiry; then it is admissible as part of the
rcs gcstae. DilLard a, Slate, 27 Ala,App,
50, i65 So.783,

12) In the prcsent casc the acts occur-
ring aftcr thc nrairr fact wcrc not disjoined
by a great span of tintc. 'I'hc evidence irrl
dicated tl.rat thc trio could not have driven
rurorc than a block before they returned to
thc sccne. Under this circumstance, we
bclicve thc acts done and statements made
aftcrrvards rverc not only connected by the
timc f actor, but were the result of the
rnain fact. This evidence shed light upon,
and gavc charactcr to thing done. It was
part of the rcs gcstae,

II
Tirc appellant tcstified irr his own behalf

ar-rd dcscribed the circumstances surround-
ing his irrvolvcurcnt in the alleged robbery.
FIc explained tirey approachcd Arlin Smith
oniy because George Douglas wanted to
borrow a dollar fron.r hirn.

SIIITII v. $TATE
Cito aE 320 So.3d 0S0

didn't havc but three one dollar biils, you malcs stop on l.larshall Strcet, One of the
knorv. I had about ten twcnties l;ut I occupants got out of thc car anci rvalkecl
didn't have but tlirec onc dollar bilis. i ovcr to r\riin Sntith. Sor:re worcls wcre
saicl, 'I{an, I don't ltavc no change,' I cxchangcd and Snrith follorvcci tlc prarr
said,'l'm goiug to go to thc store an(i over to thc c;rr, 'lhc nran got back into

c1, 'li:rn
n-,Oirt:Y.'

saiti,'l
old irin.r

to lrirr-r;
chan;q c,

ixing to
J3g1-."

' irll l'cc-
poilrt ir

:, I)avis
.c bo1',"
oir "thc
. rcci<r.,tt

rilvc th c

: bcforc
c nr ari<ccl

s sitting
ir:

Itr.' Srr

jr.rst 1iltc
r cio'll:rr,
nronc:1'.'

lirr.' So
iivc rioi-

is irvc
rructhing

rr'licci ius
his rvrrl-
anri his

)a rtir cir t

ircrrcri it
rc go', is
, I siricl,

,rc soltlc
ny pock-
s, anci I



828 SOUTEEB}I BEPORTER,, 2d SER,IES

, ' . e/iJWhenl thi lstatti's' cross-examination was
,lcohcluded,'the court proceeded to question

, . 'ttre appellant. ' After the court's, examina-
' I tion, defense counsel approached the bench.

., {He fequested a mistrial be declared, alleg-

. :ing through its questioning the court had
'rillustrited the'incongruity of appellant's
I story.';' Counsel'averred the questioning in-

; 
, ,.ltimated an unlikelihood a loan would be

I f sought 'from' a little known person when
appcllant possessed a large sum containing
dollnr bills.I-- ir . , ,1 .t,:' "'

J',l,It'was asserted that during this question-' 
'ihg'the court demonstrated in its tone of

.' lvoice and facial expressions a disbelief in
. appellant's. answers. Counsel complained
, : : thlr hrd a prcjudlclrl cffcct on thc jury,

'r In rorgondlng to rppcltrnt'r motlon, tho

again admonished thei jury'on;,thet,same'r'i
pointinthislanguagei:t,'-' t; : '.. .,i i:li

: , . , ,i : t':.ii i; ., ..iiilr.,.,l[
ta . rne,evidence idi iit ir *tilrji
comes from here and not from anybody,t
else, including , me; so yo,i can't take '.

anything I say or anything either one of
the counsels says as evidence. The evi.

' denci has to comc from thc witnesc !
'' stand and from no other place, .ha tnadr i

given by the court's tone of voice and fa- -'
'cial expressions. In this.regard wc note'a
'similar isruc wrr, dircuucd in Alhtt' i;
State, 290 Alr, 339, 276 So,Zd Stlil. Thcro
tho Alrbrmr Sugrcmc Court.

i,l 'an automaton orra robot.' He is not,,rej

quired to be a Great . Stone, Face which

showr'no rcaction to anythint thrt.hrp-
penr in hlr'courtroom,, Tattimony'thli

',iiir amulinE may drrw d rmllc or riJu3h,'i
" rhocking br dlltuteful cvidencc mni

cause a frown or scowt, without rcversl-,
'ble 

error beins committed . ' .' ', j
r - l.', ,r..,1

t3l Unquestionably a , tridl , judsii il
the right to, queltion a witncss,rbout vrrl;
ous aspects of a casc, 'Thc cxcrciae of thit
preiogativc does not transcend his,authori.l
ty or invade the,rights, of the,accusedl
Hinhle a. Stote, 50 A!a.App. Ql5 , t78 Sig.!!i:,

2r8.
1't

[a], In vlqw of tlio courtir larionitioni{
Bnd thc lrngurgo ln Alln, ruprr' wG [r0.:

,unable to find error,
:

III I

' It is contended 'that appellant's 
"onria, 

il
tion cannot'stand due to the State's failure'

to establish his knowledge of companion's'

weapon. Counsel' argues that without

proof appellant knewrthe threat of force

was being employed, no evidence existed

he was an accomplice or,had any intent tr

. rob. 
*\-- 

, ;i

| ' :.
r,;1.,,r1i ./,1

';1' ' ., t1u';ftrE cbunri'w.u, ir,d court felt ii
' ::: was itJ'duty in the interest' of justice tot", 

uk tcrtain ouertionr of thc defcndrnt ro
ljljtrro 

ltiry *outo not bc confurcd.about it,

i.lrlUeciurc it wal'ln thc intcrcat of juttlcc
.i , '-"'that, thc Court alked ccrtain qucstion3

' r"'1" that have not been askcd by the lawyers.
': So far as the Court's attitude and being

,',,-_,,,disgusted,'the, Court, I might say, has
., ' ' ,...'.bcen rathcr-I wouldh't use thc word

. :,,'.'ij 'airgnstcd' throughout, the whole trial,
.,,,;,.,because-and I have,.been looking at the
',r1 ceiling several . times, not because of
.,i,.what the defendant is saying, but be-

',' .r1,i,,""ute,of what the lawyers. are say.ing."

tri'161" t'on'was overruled and thc jury
, : wrl rocallod, '

l,,,Agpillrnt irow-iontcndr lt war uror to

. * ilrur. the motioii for a mistrial. Counsel

! . argues this behavior by the court constitut-
ed an expression of opinion on appellant's

credibility as a witness.
., "i '';In' determining the foregoing question

ie reviewed the record and found that the
' judge in his preliminary remarks cautioned
'the jury what he said during the upcoming
ttrial was not to'be taken as evidence.

Also,in the court's oral charge the judge

'tditned ir
i#t thc c

pi'll"rr"ng
abb. sso:

{The rul
i, l;:
it,f,\Mhen

i in unla
irliart to

;tinythinl
'fhey ar
crimiiral

rfonscqut

ir from st

tpecificr
z.S

.w;ll1
the is

ln

, probable
lltlnecesr
1lr l. ,

l,l I
'rl\i' iiil
!I, llti,.l;i l,,i

' lrl

i:I
',h'i

'.lii
i. I,i,

f.lfiit, ttre
i.dicted r,

Itilry, tut
lir'

I'f,iThe sr
..,yloes:

i ,l,,lu
i.:al

i.f,to,.i
fs,'fiectty
1;fflense,
:,,$.though

i.,idi"t.4
'f,,1r .

i,flR."o.1
:-J,'

n:lits: A
gri,thc pa

ldilty mu

'l. l



SMiTi{ v, STAIE
Cito &6 320 So,?d 0E0

.r\1rl. 685

I

I tn thc prcscrlt casc, appcll.rnt u,irs rlot ill- pc:'sort cortrlrint-s with arlothcr to do an

l A ' trr)l;r\\'lttl act, hc S)thclllll corlscnts to

\ bgry, btrt as pggq+tin the crinrc. tirc use of sucir tne;rns by his confcderate
as ma), irc ucccssary or usual in the sttc-

rl rlY*a'a

The statute pertaining to principais pro- 
cessfril acco,rplish,rc,t of such an act,

vidcs : 'i'he ttto rc f lagrarrt artcl vicious the act

[A]ll persons conccrnccl in tire agreed to bc dorre, the wider is the lati-

coprnrission of a fclony, whcther they di- tude of thc agency irnpliedly conferred to

rectly comniit the act corrstittlting the oi- execttte it'"
Ierrse, or aici or abct ir-r its contnrissiolt, 1
though not prescrrt, mttst hercaftcr be in- 16'7) Particil.ration atrd cotnnrttt'lt' :1 \
dictecl, tried, and purrishccl as principais, pllrpose tuay bc silou'n by circtrnrstantial l

.,,T. 14, $ 14, Code of Alabama, cvidcttce or inferrcd frorr the cor.rduct of I

Recompilecl 195g. thc participants. Appcllarrt's complicity is 
I

a rlrrcstiorr for tirc jury. Sktttt.ro u, Slole, I

t5] Althorrgh il conrn{u:rity of prrrposc 2.34 ,'\lir,'1, 170 So, 776; Pcatce a, Slsl0,4

on the part of thc conspirators to lrct crinl' Alt'ApP' 32, 58 So' 996'

inally nrust exist at the tirne thc crirrre was

committecr, such combination l,lay be o.fJt:.?i'$.. i}',t;""1,:iil:Tr1',Lt|:#i:;
forrned in a flash. It nced not be shown
that the speciiic act comprainccl of rvas by ||''ii iJJ:l]l'lt;1r"::';"i:,":"-lrj,l'i:LT'"1
prcarrangenlctlt, Ray u, Slate, 32 Ala,
App.5s6 28 So,2<1 r16, 

u' r'utc' J4 'ard' jil'lrd, :::X;:"' 
a' stote,28 Ala'App'

The rule is well established that:

"When tr,',o or more persons cnter uporl
an unlarvful purpose, rvith a conrnron in- ts as

tent to aid and encouragc cach othcr in his prcscnce in conncction with his com-

ffii,ing rvithin their comntort tlcsign, panionsfiip, his concluct nt, bcfore, and aft-
thcy are each responsible, civil)y attd cr thc corrmission of the act, are potent
criminally, {or everything rvhich may circumstances f rom tvhich participancy
consequently and subsequently result may be ilferred.
f rom such unlawf ul purpose, whcthcr
specifically contemplatecl or not." Srok- In the prcsent case the evidence is undis-

ley u. State, 254 Ala. 534, 49 So.Zd,284. puted that appellant rvas in the car during
thc alieged robbery and was sitting beside

In l4/illiatns u, Slotc, 81 Ala, 1, 1 So, thc drivcr wlro cxhibited the gun, A11

179, the issue of joint culpability was corr- three of thc men in the car participated in
sidered and Judge Somerviile concluded: thc incident in various ways. Although

the appcllant did not use a gun or actuaily-
" . [T]he responsibility for inci- makc a.y threats agai,st Artin Smitir, lff
dental and often for acciriental results coul<l reasonably bc inferred that he aidedt
broadens with the magnitude or heinous- in the commission of the of fense. 4
ness attached to the unlawfui act specifi-
cally agreed to be pcrpetrated. ThiS_; it is our judgment the acts of the appel-
rupon the prirrcirrle that every one is pre- lant in conjunction with those of his com-
s par.rions in the back seat and those of the
held responsible for, the natural and driver rvith the gun, crcated a circum-
pJ9!4]: consequences o!_hr1 oyn acts.1 stance fronr rvhich thc jury was justified
Ii-necffi*t.,.'.on..inconciudingacomnondesigntorob.

I

I i()1lt

\\,C TC

lotc:t
Iil ?'.

1[]r c rc
lrrorvi -

tI, rlot
rot 1'c-

rviut:h
t irlrp-
!, t ir;I1

l;ilgir,
i't I ,1\'

:versi-

c has
:v:Lri-
;f tilis
rtlr o ri-
:c u sccl.

So.2d

rititrirs
r'C:ITC

ollvlc-
Ia i i rrrc
rttioi-t's
ritl-rout

forcc
:x i stctl
clt'i to

I

t.
i
I

f

lr

I
li

;.

t8] Merc presence of appellant in the
car rvorrid not make him a principal. Rai-

\tt 5ot,nd*FnY'l



'.-:t

. ,11

. .i.

. i ,. rrr;.,ot1..pi.; iqrri'iri,r,i... IV;. '.,r;,f rr .r1ii. 
ri.

: O;1rj.rr .i,. yi;1.i1r,.. . ..,{.,.,,,,''.,,1r
1r l'itsl'lAt' the conclusion of the. court's

. 
' ' oial charge,. defense counsel 'apProached

' ' :. the bench and requestld appellant's written
..' , . instructions be given. The judge declined

and explained they had been incorporated
' ' in the court's 'oral charge. Appellant did
: not take an cxception and announced "Sat'
'1,' isfied." , Counsel contends the refusal of

I ippellant's, requested ' charges 'was error'
:

' ,. ,iwe 
ti.uie*.i 

,thc ."icfused ,charges and

' oral charie or were invasive of the jury's

. r province; ,,tlleir iefusals wcre proper' T'
' 7, $.273, Code bf Alabama 1940, Recom:

piled,1958.
,.. L. j .'.:iil.rt'rt,l l v

, .,1r I l,,r

1( J/! J'rlnlllll;'. i ):^,r ,/rri

, .,,,t,[.10],rr.The.,1,.evidencc,,,.dctailed abovc
'piisentid,questions of,faet for the jury

, sna tuch cvidence if belicvcd was ruffi'
. ,,'cient to sustain a conviction, . 

penial 
. 
of

' the motion to exclude and the overruling
l" of tt. motion for a new trial were proper'

' 'u',, ,,t" ,oung 
,v..Stata,'?f;3 

Lla, 
,676,20 

so'Zd *'' 
ll, l'

t:'i 
qAll thc Judger concur,,''

:. 
{]1i,: , "',. ei partc Bruce L. smlth.' I i

'326 SOUTEEN,N iREPOBTER,, 2'1 SERIES

r 888.

l'eb,20,1978,

the Court of Criminal Ap-,
I

, , ALMON, Justice. ; ;'i;,,,,,i,., ,.'"tii',,ir'r' ill',irl.

. I Petitiori bf Bruce'L, sini*,ilix C;;i,i*;lf1
ri to the Court of Criminal Appials to rd'' .l!
view and revise the judgment and decigion''

of that Court in Smith a, Stote, 57 Ala"::i

'li. *.,'
i tL: .souo,

l;il Evi
', ,'sault wi
. ,l ,' agalnst

I'lr. 
".,,

' i,, 
Lor

tlon of
.irl'

I rlcfltenct':,guilty pl

for