Appellant was convicted of the offense of robbery, and his punishment fixed at imprisonment in the penitentiary for the term of ten years. Code 1923, § 5460.
He was represented on his trial below, and here, by able and astute counsel. And as a basis for what we will have to say in disposing of the appeal we will make, in large part, a statement of the facts shown in evidence literally from said counsels' brief. It follows:
"The appellant was indicted for the robbery of One Hundred Eighteen ($118.00) Dollars in currency, the property of one James Largin, the robbery supposedly having occurred on the night of May 2, 1939, at the home of James Largin near Brookwood in Tuscaloosa County, Alabama — the only witnesses as to the facts being James Largin and his wife, Edna Largin.
"The said James Largin, commonly called Jim Largin, had admittedly let it be known around Brookwood that he was anxious to buy a fine diamond for his wife and, upon being told by one Bill Martin that he knew a man in Birmingham who had won some diamonds in a crap game and was selling them for $25.00 or $50.00 a piece and that he knew of a woman who had borrowed $183.00 on one of these rings which she had paid $25.00 for, that Jim said he wanted to buy one. It was further admitted that on May 2, 1939, the appellant came to Tuscaloosa County with one Chess Yarbrough and went to the store of James Largin near Brookwood and exhibited to him some stones alleged to be diamonds. That Jim Largin told him before buying the stone he wished to go to Tuscaloosa and have it appraised by a reliable jeweler. That during the afternoon the appellant and Jim Largin came to Tuscaloosa and had one of the stones appraised at the Fincher Ozement Jewelry Company where it was appraised at $500.00. That later during the course of the same afternoon the appellant delivered to James Largin a stone supposed to have been the stone which had been appraised, but which was in fact not the same stone but a defective stone. There was a conflict in the testimony as to the amount Largin paid appellant for the stone; appellant testifying that Largin paid him $50.00 for the stone and Largin testifying that he paid appellant $25.00 for the stone.
"The State introduced testimony of Largin and his wife (Edna Largin) — very much in conflict — to the effect that during the same night of the above outlined transaction that appellant came to their home near Brookwood, and, after being permitted to enter therein, held a pistol on Jim Largin, picked up the trousers or overalls *Page 7 of the said Jim Largin and took from one of the pockets of the said overalls a pocketbook containing $118.00 in currency alleged to be the property of the said Jim Largin.
"It was for this alleged robbery that the appellant was indicted" — and, we add, convicted.
A considerable number of exceptions were reserved on the taking of testimony; but each of them is obviously and patently to a ruling infected with no error. This is tacitly admitted by appellant's counsel in their brief filed here, inasmuch as the only error they urge upon us is the action of the lower court in overruling appellant's motion to set aside the verdict of the jury as for its being opposed to the great weight of the evidence.
Appellant, after making the admissions mentioned above, denied in his testimony that he was at the home of Jim Largin on the night in question, at all. But claimed that after he left Largin, and Brookwood, at about 4:30 o'clock or 5:00 o'clock on the afternoon of the above described "diamond transaction" he went on to Bessemer, thence to Adamsville, thence to Birmingham, thence to the home of one Popewell in Shelby County, Alabama, where he spent the night gambling. And he supported his testimony by that of a number of gamblers who testified he spent the night there at Popewell's with them.
Before making our own comments, it may be interesting to record some of those made by appellant's aggressive counsel. They say:
"The truth of the matter is that no robbery ever occurred. And the truth is in this case that two men, namely, Jim Largin and the appellant, were each trying to get something for nothing from the other and the appellant happened to be the cleverer of the two.
"It is simply a proposition where one man with loaded dice encountered another man with dice a trifle heavier loaded than his, and, if the conduct of both had not been so reprehensible, and the consequences so serious for the appellant, the affair would be somewhat amusing.
"The State's case is not founded on the mistaken recollection of witnesses, but is based entirely on the deliberate perjured testimony of Jim Largin and his wife Edna Largin, and the purpose of getting even with the appellant for tricking him about the diamond."
As stated, appellant's sole reliance for a reversal here of the judgment of conviction rendered against him is in persuading us to hold that the trial court erred in overruling his motion for a new trial, on the ground mentioned hereinabove. But we are not persuaded. And that, really, is enough to say.
Our cases of Melton v. State, 26 Ala. App. 265, 158 So. 196, and Willingham v. State, 28 Ala. App. 261, 183 So. 887, are urged upon us as authorities for our holding, here, in accord with appellant's insistence. But neither of them is similar.
Here, appellant admits that there was clear, direct, positive evidence pointing to — asseverating — his guilt. To repeat his counsels' own language: "The State's case is not founded on the mistaken recollection of witnesses, but is based entirely on the deliberate perjured testimony of Jim Largin and his wife Edna Largin, and the purpose of getting even with the appellant for tricking him about the diamond."
Now it may be that Jim Largin — along with appellant — was shown to be unworthy of belief.
It is noted we include appellant in this statement, even though his counsel begin their "Brief and Argument" filed here with the rather plaintive observation that: "The appellant, George Brown, is a white man 30 years of age, a resident of Birmingham, Jefferson County, Alabama, who proved his prior good character by people of prominent standing of his neighborhood."
And it is true his good reputation was established in the testimony. But his character was established by his own admission that he, in the presence of Jim Largin, had one diamond appraised; and then, when Jim was not looking, put another, inferior, spurious, diamond in its place, and delivered this last stone to Jim in the stead of the one that had been appraised.
But we digress.
Coming back to the State's testimony, we observe that whatever may be the status with reference to Jim Largin's testimony, we find nowhere a reflection upon the character or reputation of Mrs. Edna Largin. And we are very far removed from a feeling that we would be warranted in branding her, as appellant asks us to do, a perjurer. And this, even granting that her testimony, as given in this case, is not that upon which we, if we had been sitting as jurors, would have returned a verdict finding appellant guilty of robbery. *Page 8
Before leaving the subject we had intended observing that the similarity of "standing" shown between Jim Largin and appellant — mentioned by appellant's counsel in their brief filed here — was such, apparently, as to completely confuse the able Assistant Attorney General representing the State on this appeal. We note that in his excellently prepared brief filed here he has substituted, throughout, the name of Brown, the appellant, where he had intended to insert — as is plain from the context — the name of Largin, the party alleged to have been robbed.
But to conclude, we observe, quoting from the brief here on behalf of the State: "The general charge should never be given when there is any (substantial) evidence, however weak and inconclusive it may be, tending to make a case against the party who asks it; and in such case, though there be manifestdiscrepancies in the State's testimony the court should not onthat account, merely, grant a motion for a new trial." Grimes v. State, 24 Ala. App. 378, 135 So. 652; Glover v. State,25 Ala. App. 423, 148 So. 160; Weaver v. State, 22 Ala. App. 162,114 So. 67; Davis v. State, 229 Ala. 674, 159 So. 209.
The judgment is affirmed.
Affirmed.