In robbery prosecution, victim properly allowed to testify that after defendant robbed her he attempted to rape her
How later courts described this case
- In robbery prosecution, victim properly allowed to testify that after defendant robbed her he attempted to rape her
- rape conviction admissible in robbery prosecution
Written by the judges who cited it.
The opinion
On Motion for Rehearing.
We hope that this extension of the opinion is sufficient to answer those who have intentionally, or unintentionally, given the impression that the appellant has been sentenced to death for the larceny of a small amount of money.
The charge against the defendant is not simply that of stealing a small amount of money, viz.: larceny. The offense of larceny is not a crime of violence, while robbery, for which the defendant was tried and convicted, is the felonious taking of money or goods of value from the person of another, or in ■his presence, by violence to his person or by putting him in fear. In robbery the amount of the money or the value of the property taken is immaterial. This court has said:
“ * * * Roscoe (Evidence in Crim.Cases, 908) says: Tt must be proved that some property was taken, * * * but the value of the property is immaterial. A penny, as well as a pound, forcibly extorted constitutes a robbery, the gist of the offense being the force and terror. Thus, when a man was knocked down, and his pockets rifled, but the robbers found nothing but a slip of paper containing a memorandum, an indictment for robbing him of the paper was held to be maintainable.’ * * 4 ” James v. State, 53 Ala. 380, 387 ; 52 C.J.S. Larceny § 154 note 27, p. 1012.
The punishment prescribed for grand larceny is imprisonment in the penitentiary for not less than one year nor more than ten years, and for petit larceny imprisonment in the county jail, or sentenced to hard labor for the county, for not more than twelve months, and may also be fined not more than five hundred dollars, at the discretion of the jury. The punishment for robbery is death or imprisonment in the penitentiary for not less than ten years.
The punishment to be fixed for robbery is, within statutory limits, the exclusive province of the jury (section 415, Title 14, Code of 1940), subject, of course, to the power of the Governor to commute a death sentence, as noted in our original opinion where wp said:
“If any clemency is to be extended to the appellant, it must come from executive action.”
The testimony in this case clearly establishes beyond any doubt that robbery was committed by the defendant. Although not an essential of the offense, in this case the robbery was committed in the night time in the home of the victim. The trial court did not have, nor does this court have, authority to modify the punishment. Scott v. State, 247 Ala. 62 , 22 So.2d 529 . Under the Constitution of Alabama the power to commute a death sentence is vested exclusively in the *92 Governor. Constitution of 1901, § 124; Amendment 38 to the Constitution of 1901, Code 1940, Vol. 1, page 332; Montgomery v. State, 231 Ala. 1 , 163 So. 365 , 101 A.L.R. 1394 ; In re Upshaw, 247 Ala. 221 , 23 So.2d 861 .
Opinion extended and application for rehearing denied.
All the Justices concur.