The opinion
VI THE ROBBERY CONVICTION
As is shown in Judge Simmons' recital of the evidence, the robbery and murder were legally discrete crimes which came from a single transaction, i. e., taking money by violence. The jury was entitled to view the killing as a terroristic act intended to deter or delay pursuit of the robbers.
The trial judge in the murder case elaborated in his instructions on the felony-murder doctrine. These directions became the law of the case. 1 Our Clerk tells us the trial judge allowed only one transcript.
In the 1923 Code of Alabama first adopted a bar to double punishment which now appears in Code 1940, T. 15, § 287 which reads as follows:
"Any act or omission declared criminal and punishable in different ways by different provisions of law, shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision."
The appellant pleaded double jeopardy. Here, as in Yelton v. State (1975), 56 Ala. App. 272 , 321 So.2d 234 , where the other conviction is not yet final we would be speculating as to whether or not punishment under the murder conviction would preclude punishment under the robbery conviction. Accordingly, we consider that the New York practice of concurrent sentences is the only pragmatic solution.
The judgment of conviction for robbery is affirmed but the cause is remanded so that the sentence of ten years imprisonment is to run concurrently for the first ten years of the life sentence for murder. If the murder conviction is set aside such action will not affect the sentence under the robbery conviction.
Murder conviction affirmed.
Robbery conviction affirmed but cause remanded for concurrent sentence.
All the Judges concur.
1 "* * * And if you are satisfied from the evidence beyond a reasonable doubt and to a moral certainty, as I have explained to you, that a homicide was committed and that it was committed in the perpetration of the offense of one of these enumerated, that I have explained to you, then, the degree of the homicide would be murder in the first degree. If perpetrated or committed in the perpetration of or the attempt to perpetrate in the arson, robbery, rape or burglary or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, the offense would be murder in the first degree. And if you are so satisfied from the evidence, satisfied beyond a reasonable doubt and to a moral certainty, then, in that event the form of your verdict would be, 'We, the jury, find the defendant guilty of murder in the first degree.' "