Opinion
1 Div. 108.
January 11, 1972.
Appeal from the Circuit Court, Mobile County, Robertson, J.
Thomas E. Bryant, Jr., Mobile, for appellant.
Evidence creating nothing more than a mere suspicion of guilt is not sufficient for conviction. McCurdy v. State, 42 Ala. App. 305, 162 So.2d 892; Parker v. State, 41 Ala. App. 329, 132 So.2d 267; Grimes v. State, 38 Ala. App. 94, 76 So.2d 684.
MacDonald Gallion, Atty. Gen., and Joseph Victor Price, Jr., Asst. Atty. Gen., for the State.
In a prosecution for robbery, where there is testimony by victim that the accused was his assailant and where the accused is apprehended with the fruits of the crime in his possession, sufficient evidence is thereby presented to justify the verdict of the jury. Payne v. State, 33 Ala. App. 65, 31 So.2d 96, aff'd. 249 Ala. 317, 31 So.2d 99.
Appellant was convicted in the Circuit Court of Mobile County of robbery and sentenced to fifteen years in the penitentiary.
The evidence showed that Charles Danzy, while riding in his automobile in Prichard, gave two hitchhikers a ride on the night of November 1, 1968. Moments after picking them up they assaulted him and took control of his automobile. He was then taken to a place in Mobile County described as "down here at the L. N. Railroad tracks" where the two men bound his hands behind him and beat him. The two men took his wallet containing approximately $30.00 in cash and a check for $255.00 and left in Danzy's automobile.
Later that night the Bay Minette police stopped appellant for reckless driving. When the police asked for his identification he produced Danzy's wallet and driver's license. The police became suspicious when the description on the driver's license did not match that of appellant. When the police arrived at the police station with appellant, they learned that the automobile belonged to Danzy and that he had been robbed.
At the conclusion of the State's case, appellant made a motion to exclude the evidence. This motion was denied by the trial judge and appellant rested without offering any evidence.
The only issue presented on appeal is the sufficiency of evidence. During the trial Danzy testified that appellant appeared to be the man who robbed him. It is argued in brief that there was no positive identification and consequently the verdict of guilt was based on suspicion only. The evidence was undisputed that appellant was arrested while driving Danzy's automobile and in possession of his wallet within three or four hours after the robbery. The fact that the victim did not make a positive identification is not fatal. Such fact went to the weight of the testimony. Carpenter v. State, 42 Ala. App. 618, 174 So.2d 336. We conclude that the evidence was sufficient to sustain the verdict.
The judgment appealed from is therefore due to be affirmed.
Affirmed.