BUSH v. STATE12/1/1995
y said it in finding and seeking and determining the truth. The law says when these witnesses come in here and take the oath to tell you the truth, tell me the truth, they're supposed to tell us the truth. So we should reconcile all of the testimony to make it all speak the truth, if we can. If you can't do that, then it is up to you as finders of the truth, to separate the truthful part from the part, if any, that you find not to be the truth, and base your verdict, of course, only on the truth. If you find that a witness willfully testified to you falsely on any material matter, the law says you're entitled to disregard the witness's entire testimony, if you want to; or again you can separate the truthful part from the part, if any, you find not to be the truth and base your verdict, of course, only on the truthful, the credible, the believable testimony."
We find that, taking this instruction as a whole, it was a correct statement of the law and was not misleading. We do not agree with the appellant's analysis of the instruction. The cases relied upon by the appellant are distinguishable from the instant case. We find no plain error in the giving of this instruction.
The appellant contends that the trial court erred in failing to instruct the jury as to the specific property, including the value of the property, that, he says, the jury was required to find he had stolen before it could find him guilty. Counts I and II of the indictment alleged, "a theft of property, towit:
two bags of Zodiac sign tags, a better description of which is unknown to the grand jury, the value of which is unknown to the grand jury." Counts III and IV allege, "a theft of property, to-wit: the kind, amount or value otherwise unknown to the grand jury, a better description of the property is otherwise unknown to the grand jury."
When robbery was a common law crime in Alabama, a "taking" was required, Wilson v. State, 268 Ala. 86, 105 So.2d 66 (1958), although the amount or value of the property taken was immaterial, Sanders v. State, 289 Ala. 224, 266 So.2d 802 (1972). However, our present robbery statutes do not require a "taking" of property, Grace v. State, 431 So.2d 1331 (Ala. Cr. App. 1992). Sections 13A-8-40 through -44 and the indictment in a robbery case need not allege an actual theft to constitute the offense. The operative words of the current robbery statute are "in the course of committing a theft," which includes an attempted theft. Grace v. State. Moreover, under our present robbery statute, the value of the property is immaterial. We find that the robbery portions of the four counts of the indictment sufficiently charged the offense of robbery in the first degree or an attempted robbery in the first degree. § 13A-5-40(a)(2). See our discussion of the allegations of robbery in the indictment in Part IX above. The appellant contends in a footnote to his brief to this court that the trial court's instruction constituted an unlawful amendment to the indictment. We do not agree. We find no plain error in these contentions.
The appellant contends that the jury instruction on reasonable doubt violated the holding of the United States Supreme Court in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). The appellant argues, in effect, that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause. The trial court's instruction on reasonable doubt was as follows, with the portion to which the appellant specifically objects emphasized:
"The law says that everybody in this country, Mr. Bush here included, is innocent of any and all offenses. He
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