Harris, Judge, wrote the opinion.
The opinion of the court was delivered by: Harris
Appellant was convicted of robbery and the jury fixed his punishment at ten years in the penitentiary. The court imposed sentence in accordance with the verdict of the jury. Prior to arraignment, appellant was found to be indigent and counsel was appointed to represent him. He pleaded not guilty. After sentence he gave notice of appeal but elected not to have the sentence suspended pending appeal. He sought and obtained a free transcript and trial counsel was appointed to represent him on this appeal.
The facts in this case are not complicated. On November 22, 1972, at approximately 3:30 p.m., the San Ann Service Station at 2600 24th Street North, Birmingham, Jefferson County, Alabama was robbed. Mr. Lofton Baker testified that at the time of the robbery, he was operating the station and a Negro man who was about six feet two inches tall and weighed over 200 pounds came in the station and asked for a package of Kool cigarettes; that when he turned to get the cigarettes, the robber showed him and he saw a pistol in his hand. The robber said he wanted all the money and took about $150.00 from his person and ran out of the station. Mr. Baker further testified that he got his pistol and ran outside the station to try to apprehend the man who had just robbed him. He saw him get in a Vega automobile parked in an alley near the station. He stated he observed the man get back out of the Vega and flee down the alley. The police department was called and immediately responded and Mr. Baker gave the officers a description of the robber.
Subsequent testimony revealed that Birmingham Police Sergeant Kenneth R. Holler came to the robbery scene and verified that this Vega automobile was indeed in the alley and also verified that during his investigation of the robbery, Mr. Baker told him that appellant had gotten in and out of this automobile during his escape.
Police Officer Randy Taylor testified that he personally lifted fingerprints off the Vega automobile and that two of the prints, numbered 1625 and 1632, were identifiable.
Police Sergeant W. L. Jones testified that he had personally taken appellant's fingerprints at the Birmingham City Jail.
Sandra Triplett who was employed as a fingerprint expert by the Birmingham Police Department, and whose qualifications were admitted by defense counsel, testified that the two identifiable prints taken from the Vega automobile were the prints of the second and third fingers on the right hand of appellant, Hayes Joe Tooson. She further testified that these were identical with the prints of appellant taken at the Birmingham jail.
Sylvester Crumb testified as to seeing the Vega automobile in the alley and also confirmed that a man resembling appellant had come out the San Ann Service Station and run down the alley.
Mr. Baker stated that on January 7, 1973, Police Detective Richard Watkins had shown him several photographs of different suspects and that he had picked out one of the photographs as definitely being the man who had robbed him. He also made a positive in-court identification of appellant as the person who had robbed him, and it was conceded that the picture Mr. Baker had picked out was a picture of appellant. Mr. Baker further testified that no suggestive statements of any kind were made to him by the police before he picked out appellant's mug shot from seven which were shown to him.
Detective Richard Watkins testified that on January 7, 1973, he showed seven photographs to Mr. Baker and that without hesitation he picked out a photograph which later turned out to be a photograph of appellant.
Appellant did not testify in his behalf, but offered alibi testimony. Shirley Holmes, appellant's sister, testified that on the day of the crime her brother had attended a family reunion and she had been with him most of the day. On cross-examination, however, Shirley Holmes conceded that she could not say for sure that her brother was at the reunion at the time of the robbery.
Charlene Browning testified for the defense in substantially the same manner as Shirley Holmes. On cross-examination she admitted that she did not remember seeing appellant at the family reunion at the time of the robbery. She stated she remembered seeing ...