Opinion
81-71.
December 11, 1981.
Petition for Writ of Certiorari to the Court of Criminal Appeals, 407 So.2d 566.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for petitioner.
Barry Hess and Virginia A. Johnston of Hess, Atchison Horne, Mobile, for respondent.
WRIT DENIED.
ALMON, SHORES, EMBRY and BEATTY, JJ., concur.
MADDOX, JONES and ADAMS, JJ., dissent.
FAULKNER, J., not sitting.
I would grant the petition for writ of certiorari and limit the remand to the issue of sentencing. This case shows the extreme of what the dissent was trying to point out in Ritter v. State, 403 So.2d 154 (Ala. 1981). In this case, where the defense is alibi, there is no possibility that the accused could have raised a lesser-included offense. He was there and did it, or was somewhere else and did not do it. How can he be entitled to a new trial because he was denied a lesser-included offense charge?
MADDOX and ADAMS, JJ., concur.