Cummings v. State , 127 Ga. App. 695 ( 1972 )

127 Ga. App. 695 (1972) 194 S.E.2d 629

CUMMINGS
v.
THE STATE.

47619.

Court of Appeals of Georgia.

Submitted November 6, 1972. Decided December 4, 1972.

Glenn Zell, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Joel M. Feldman, for appellee.

EVANS, Judge.

The defendant was indicted, tried, and convicted by a jury of the offense of attempt to commit armed robbery. He was sentenced to serve 10 years. Thereafter, motion for new trial was filed, amended, heard, and overruled. The appeal is from the judgment of conviction and sentence and the denial of his motion for new trial, as amended. Held:

The one contention of defendant is that the court erred in overruling the general grounds because the proved facts did not exclude every other reasonable hypothesis save the guilt of the accused. The defendant contends he was driving his own automobile and was requested by a companion, who was riding with him, to pull into a service station so the companion could buy cigarettes; and that while there his companion attempted to rob the service He contends he did not know of his companion's intention and that he took no part in the attempt to rob the service station. The State contended that a conspiracy existed between the defendant and his companion, and evidence was introduced which showed that defendant was driving a car which had a gun in the front seat; that the companion tried to rob the station, signaled for defendant to back up which defendant did, and then when the robbery attempt failed, the defendant drove off in a hurry, thus helping his companion to escape.

A conspiracy may be shown by circumstances which do not measure up as strongly as these. Walden v. State, 121 Ga. App. 142 (1) (173 SE2d 110). Unexplained flight has been held sufficient to convict. Prather v. State, 116 Ga. App. 696 (1) (158 SE2d 291).

In this case, the companion was jointly indicted with defendant, although defendant was tried separately. The jury had ample evidence from which they could have determined that a conspiracy existed between the driver and his companion; and, of course, one member of a conspiracy is fully responsible for what other members thereof do in pursuance of the conspiracy. Turner v. State, 138 Ga. 808, 812 (76 S.E. 349); Chambers v. State, 194 Ga. 773, 781 (22 SE2d 487); Ingram v. State, 204 Ga. 164, 183 (48 SE2d 891); Fincher v. State, 211 Ga. 89 (4) (84 SE2d 76).

Accordingly, the trial court did not err in overruling the motion for new trial, and the judgment of said court is

Affirmed. Bell, C. J., and Stolz, J., concur.