RUSSELL v. STATE, 53 Ala. App. 491 (1974)

301 So.2d 254

Sidney RUSSELL v. STATE.

6 Div. 698.Court of Criminal Appeals of Alabama.
October 1, 1974.

Appeal from the Circuit Court, Jefferson County, Charles A. Crowder, J.

No brief for appellant.

William J. Baxley, Atty. Gen. and Quentin Q. Brown, Asst. Atty. Gen., for the State.

T. WERTH THAGARD, Supernumerary Judge[1]

[1] July 26, 1974, pursuant to § 6.10 of the Judicial Article, Amendment No. 328 of the Constitution, the Chief Justice assigned to this Court Honorable T. WERTH THAGARD, Supernumerary Judge of the Court of Civil Appeals, for temporary service.

The defendant, Sidney Russell, was indicted, tried and convicted in the Circuit Court of Jefferson County, Alabama, of committing the offense of assault with intent to rob one Frederick Louis Bordens. A judgment of conviction was entered on December 13, 1973 and the case passed for sentencing to December 14, 1973, on which day the trial court fixed the defendant’s punishment at imprisonment in the penitentiary for the term of ten years, and duly and legally imposed sentence accordingly.

Motion for new trial was presented to the court on January 1, 1974 and continued for hearing on February 8, 1974. On February 8, 1974 again passed to March 8, 1974 and on that day overruled.

The case is here without a brief in behalf of defendant.

Frederick Bordens was sitting at a desk in one of the studio rooms selling tickets to entertainments to be had at the WENN Radio Station that afternoon and that night. One Ruth Tankersly was sitting by or near him. Two strangers entered, approached his desk, and inquired as to the price of the tickets. Immediately after Bordens answered, defendant’s companion pulled a pistol from his jacket and said, “This is a hold-up.” Here, the following dialogue occurred between the State’s attorney and the witness:

Page 492

“Q. What, if anything, did you say or do when the other man said ‘this is a hold-up?’
“A. Wasn’t anything for me to say. Before I could say a word the defendant told him, said, ‘shoot the so and so.’ “

Thereafter, the gunman shot Bordens twice, seriously wounding him internally, and Bordens shot the gunman one or more times, also seriously wounding him. Bordens was carried to Methodist Carraway Hospital where he spent eleven days. During that time one of the policemen carried a number of small photographs to him from which he selected two as being of the perpetrators of the robbery. He also positively identified one of them as the defendant. One or two other radio station employees who were present at the time of the alleged attempted robbery identified the defendant. The State’s case as presented by its witnesses was complete; it supplied all of the elements of the alleged offense and, if believed beyond a reasonable doubt, sustained the verdict and judgment of conviction.

The defendant elected not to testify. He offered one witness, his wife, who testified that he spent the entire day at home with her, and could not have been at the scene of the crime at the time of its alleged commission.

The record reveals one ruling of the court besides the one denying the motion for a new trial. We have searched the record for error, as we are bound to do, and we find none.

The judgment in this cause is

Affirmed.

ALMON, TYSON, HARRIS and DeCARLO, JJ., concur.

CATES, P. J., not sitting.

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