Return to Top of DocumentSECTION 1 - COLQUITT
FALL, 2002
405 So. 2d 71 (Ala. Crim. App. 1981)
The defendant was indicted and convicted for robbery in the first degree. Sentence was life imprisonment without parole under the Habitual Felony Offender Act.
The defendant maintains that his motion to exclude the State's evidence should have been granted because the State failed to prove that the defendant was armed with a pistol as charged in the indictment in that the victim never actually saw the weapon.
The indictment charged that the defendant committed the crime of robbery while "armed with a deadly weapon, a pistol." The evidence reveals that, while no weapon was actually displayed, the defendant, by placing his hand inside his coat pocket, gave the victim the impression that he was armed with a pistol. While it is without dispute that no one at any time actually observed the defendant with a pistol, it is equally without dispute that the victim thought he had one. The victim's testimony on this point is best summarized in the following portion of the record.
"Q. Okay. When he pointed his hand at you like that (indicating), were you afraid?
"A. When he pointed his hand?
"Q. No you said that he had -
"A. He didn't point his hand; he had a gun.
"Q. Did you see the gun?
"A. I saw he had the gun in his pocket.
"Q. Did you see the gun?
"A. Did I actually see the gun? I saw that he had a gun in his pocket.
"Q. Well -
"A. There's your answer.
"Q. What kind of gun was it?
"A. How could I see it when it was in his pocket? I mean, I didn't see it. It was in his pocket.
"Q. So, you didn't see the gun?
"A. I saw it was in his pocket.
"Q. What kind of gun was it?
"A. It was in his pocket.
"Q. You thought he had a gun?
"A. No, I saw he had a gun. I saw that he had a gun in his pocket.
* * *
"Q. Did you see the gun?
"A. I did not actually see the gun.
"Q. All right. So, you don't know whether he had a gun, then, or not, do you?
"A. Let me tell you -
"Q. Yes, or not? Please. You don't know whether he had a gun, or not, do you?
"A. He had a gun.
"Q. Did you see the gun?
"A. I didn't see it, but he had it.
"Q. You thought he had a gun.
"A. He -
"Q. That's all I'm asking you, Miss White. You thought he had a gun. You didn't see a gun, did you?
"A. That's all that matters."
The relevant portions of Section 13A-8-41, Alabama Code 1975 (Amended 1977), defining robbery in the first degree, provide:
"(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
"(1) Is armed with a deadly weapon or dangerous instrument; * * *"
"(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he is so armed."
* * *
A conviction of first degree robbery does not require evidence that the accused brandished or displayed any weapon. * * * To find as a matter of law that where a gun is not seen a defendant cannot be convicted of first degree robbery would allow all would-be robbers to keep a gun or other dangerous weapon concealed during the crime to be used only if needed. * * * Under our statute, such an interpretation would defeat the intent of the legislature and "basic theory" of the statute to "protect the citizen from fear for his or another's health and safety." Here the defendant's actions instilled in the victim the reasonable belief that he was armed with a pistol. Under section 13A-8 -41(b) this constituted prima facie evidence that the defendant was so armed. Since there was no evidence to rebut this presumption and as the State proved all the other elements of robbery in the first degree, the defendant's conviction must stand.
AFFIRMED.
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