Kelly v. State

Supreme Court of Alabama

Kelly v. State

176 So. 807, 235 Ala. 5, 1937 Ala. LEXIS 278

CourtSupreme Court of Alabama

DecidedJune 28, 1937

Docket4 Div. 974.

StatusPublished

Cited by43 cases

This text of 176 So. 807 (Kelly v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. State, 176 So. 807, 235 Ala. 5, 1937 Ala. LEXIS 278 (Ala. 1937).

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Opinions

*6 FOSTER, Justice.

The opinion of the Court of Appeals shows that appellant was tried on a charge of robbery, which, of course, includes the lesser crimes of larceny and assault and battery. The trial court refused to give two charges for defendant, (1) that the indictment includes a charge of larceny, and (4) that it includes a charge of an assault and battery. Of course, the charges asserted correct legal propositions, and under section 8697, Code, the jury could have convicted defendant of either of those charges if, but only if, the evidence was sufficient to support such a charge. The opinion of the Court of Appeals does not assert that there was evidence that though defendant may not have been guilty of robbery, he did some act in that connection which was larceny, or was assault and battery.

We assume from the opinion in this case that the Court of Appeals holds that section 8697, Code, makes it mandatory on the trial court to charge the jury at the request of defendant on the law of larceny and assault and battery, when the indictment charges robbery, though, the evidence be such that defendant is guilty of robbery or nothing. It could very well be without doubt that a robbery was committed, and the disputed question was whether defendant was the guilty actor. If there is a controversy as to whether the act was robbery or larceny or assault and battery, the defendant is, of course, entitled to have the court charge on all three such aspects.

We have an illustration in the law of homicide. Section “¡1457, Code, has been construed as mandatory that the trial court must charge on the two degrees of murder when trying an indictment for first degree murder. But though the indictment impliedly includes manslaughter, it is not necessary to charge on the law of manslaughter, if the evidence is such that defendant is guilty either of murder or is justified, and not guilty of any offense. Whitehead v. State, 206 Ala. 288, 90 So. 351; Gafford v. State, 125 Ala. 1, 28 So. 406.

And while an attempt to commit a crime is impliedly included in an indictment charging the crime, though it makes no reference to an attempt, it was properly held by the Court of Appeals that there was no error in refusing a charge on an attempt, when the evidence did not support such an offense.. Brazier v. State, 25 Ala.App. 422, 147 So. 688. And in the case of Reeves v. State, 17 Ala.App. 684, 88 So. 197, the Court of Appeals properly applied the same principle to a charge of robbery, such as in the instant suit. These cases seem to us to conflict with another decided by that court of Robertson v. State, 24 Ala.App. 237, 133 So. 742. We cannot follow the latter, but think the former state the better rulé of construction.

So that we think the Court of Appeals should not have reversed this case for the refusal of those charges unless there was a reasonable theory from the evidence which would not support a conviction for robbery, but would support a conviction for larceny on the one hand or assault and battery on the other.

The judgment of the Court of Appeals is reversed and the cause is remanded to that court to determine whether the facts justify such a theory of guilt.

Writ granted. Reversed and remanded.

All the Justices concur.

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*6 FOSTER, Justice.

The opinion of the Court of Appeals shows that appellant was tried on a charge of robbery, which, of course, includes the lesser crimes of larceny and assault and battery. The trial court refused to give two charges for defendant, (1) that the indictment includes a charge of larceny, and (4) that it includes a charge of an assault and battery. Of course, the charges asserted correct legal propositions, and under section 8697, Code, the jury could have convicted defendant of either of those charges if, but only if, the evidence was sufficient to support such a charge. The opinion of the Court of Appeals does not assert that there was evidence that though defendant may not have been guilty of robbery, he did some act in that connection which was larceny, or was assault and battery.

We assume from the opinion in this case that the Court of Appeals holds that section 8697, Code, makes it mandatory on the trial court to charge the jury at the request of defendant on the law of larceny and assault and battery, when the indictment charges robbery, though, the evidence be such that defendant is guilty of robbery or nothing. It could very well be without doubt that a robbery was committed, and the disputed question was whether defendant was the guilty actor. If there is a controversy as to whether the act was robbery or larceny or assault and battery, the defendant is, of course, entitled to have the court charge on all three such aspects.

We have an illustration in the law of homicide. Section “¡1457, Code, has been construed as mandatory that the trial court must charge on the two degrees of murder when trying an indictment for first degree murder. But though the indictment impliedly includes manslaughter, it is not necessary to charge on the law of manslaughter, if the evidence is such that defendant is guilty either of murder or is justified, and not guilty of any offense. Whitehead v. State, 206 Ala. 288, 90 So. 351; Gafford v. State, 125 Ala. 1, 28 So. 406.

And while an attempt to commit a crime is impliedly included in an indictment charging the crime, though it makes no reference to an attempt, it was properly held by the Court of Appeals that there was no error in refusing a charge on an attempt, when the evidence did not support such an offense.. Brazier v. State, 25 Ala.App. 422, 147 So. 688. And in the case of Reeves v. State, 17 Ala.App. 684, 88 So. 197, the Court of Appeals properly applied the same principle to a charge of robbery, such as in the instant suit. These cases seem to us to conflict with another decided by that court of Robertson v. State, 24 Ala.App. 237, 133 So. 742. We cannot follow the latter, but think the former state the better rulé of construction.

So that we think the Court of Appeals should not have reversed this case for the refusal of those charges unless there was a reasonable theory from the evidence which would not support a conviction for robbery, but would support a conviction for larceny on the one hand or assault and battery on the other.

The judgment of the Court of Appeals is reversed and the cause is remanded to that court to determine whether the facts justify such a theory of guilt.

Writ granted. Reversed and remanded.

All the Justices concur.

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176 So. 807, 235 Ala. 5, 1937 Ala. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-ala-1937.

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