Opinion
3 Div. 497.
August 24, 1976. Rehearing Denied October 26, 1976.
Appeal from the Circuit Court, Montgomery County, Perry O. Hooper, J.
William G. Fowler, Fred Blanton, Birmingham, for appellant.
William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
On Rehearing
On original deliverance for the sake of avoiding unneeded expense to the lawyers of lengthy recitals of fact where no new law is involved in an appeal, we entered a cryptic "Affirmed; No Opinion." Code 1940, T. 13, § 66. However, we did search the record under T. 15, § 389.
This appeal was from a conviction of assault to murder which carried a sentence of twenty years. The victim was a Montgomery policeman, T.J. McLain. McLain drove up to a filling station at which three men were engaged in a robbery. They had taken some bills and a pistol from the station attendant.
Next, the robbers tried to chisel loose a safe cemented to a floor. Sometime during this attempt McLain drove up in a patrol car. An affray broke out in which McLain was shot by one of Poe's accomplices. This shooting enabled Poe and the others to escape. Poe claims double jeopardy because he was also convicted of robbery.
In Colston v. State (Ms. August 31, 1976) we applied the same transaction test to Code 1940, T. 15, § 287. Here the robbery, in legal contemplation, was complete by the time McLain drove up. Hence, Poe's claim of double jeopardy was properly denied in the circuit court.
The application for rehearing is
OVERRULED.
All the Judges concur.