Spencer v. State

MenchinE, J., dissenting: I would affirm. It seems to me that the majority has substituted its judgment for that of the trial court in a matter wherein reasonable minds might differ. I believe that the opportunity of the trial judge to hear the witnesses and to observe their conduct should be controlling in such a situation. There is no doubt that the co-defendant, Lipscomb, approached the Pepsi-Cola truck with attempted robbery in mind.

There is no doubt in my mind that on the cold record, the conclusion is permissible, if not inescapable that the appellant acted in concert with Lipscomb. The testimony that there was a second man running at the back of the truck; the joint flight with Lipscomb from the scene of the attempted robbery; the manifest inconsistencies in the testimony of Lipscomb, and the suggested exculpatory statement of Spencer; the physical condition of the men as described by the arresting officers upon arrest; the uncontradicted testimony that Lipscomb and the appellant were together before and after the event; the prior discussions of a need for money; in combination permit, if they do not compel a finding of guilt. Judge Thompson joins me in this dissenting opinion.