Setzer v. State , 76 Ga. App. 509 ( 1948 )

1. Robbery by force and violence and robbery by intimidation are not separate offenses, but different grades of the same offense. Where both grades are charged in the same count, and the evidence shows robbery by force and violence only, a verdict for robbery by intimidation can not be sustained. So, where the evidence sustains a verdict for robbery by intimidation only, a verdict for robbery by force and violence can not be sustained. Where the evidence shows robbery by force and violence and also robbery by intimidation, in such a situation, this being a jury question, a verdict for either will be sustained.

2. (a) The court did not err in overruling the motion for continuance.

(b) The court did not err in putting on the defendant for the trial of his case the jurors who had heard the evidence on the motion for continuance.

DECIDED FEBRUARY 18, 1948. The defendant was convicted on an indictment containing one count, charging (a) robbery by force and violence, and (b) by intimidation. He filed his motion for a new trial, and thereafter amended this motion by adding three special grounds. The defendant made a statement, but offered no testimony. His statement was somewhat in detail in rebuttal of the State's evidence in denying guilt and protesting any participation in or knowledge of the robbery. From the State's evidence the jury were authorized to find: That the defendant left his home in Oxford, Alabama, and arrived in Tallapoosa, Georgia about 10 o'clock a. m., and began drinking beer. At about 3 o'clock in the afternoon he met Brown at a cafe. They thereafter bought about ten bottles of beer and hired a taxi-driver, Red Cauthen, to drive them to the river, about three miles distant from the town of Tallapoosa. This was around 6 o'clock p. m. The taxicab driver returned to Tallapoosa and thereafter went back to the river and returned the defendant and Brown to town about 8 o'clock p. m. The defendant and Brown remained together until about 11 o'clock p. m., at which time the robbery of Brown is alleged to have occurred. The defendant and Brown did not know each other until they met in the cafe in the early afternoon before the robbery the following night. The defendant lived in Tallapoosa and Brown did not. The defendant was more familiar with the directions and the location of the bus station and the streets than was Brown. Just before the robbery the defendant and Brown were at "Cliff's Place," and Brown told the defendant: "``I have got to go home' — and I got up and started toward the bus station. I started out of the door and he told me, he says, ``Well, you have been drinking enough to where the law will pick you up; if you want me to I will show you the way to the bus station so you won't have to go through town,' and I told him ``All right.' So we went a roundabout way that he was going to show me to keep me from getting on Main Street, I am not acquainted with the place. I don't know the names of the streets. Cliff's place is on the main highway. When we left Cliff's Place, we went on a concrete tour [road] and then turned off on a dirt road. How far we go on the dirt road, I couldn't tell you exactly. I imagine it was something like I would say, two blocks and a half, possibly. Then what happened, we was walking along the road together, he was on my left side and all of a sudden he shoved me around with his left hand and I fell in the ditch, and he jumped over there and threw his knee against my jaw. I had my pocketbook in my side coat pocket. What kind of a pocketbook was it? It was just a man's billfold with a zipper on it, the zipper was broken and it wouldn't fasten, and as I hit the ground he ran his hand in my pocket and got hold of my pocketbook and pulled it out, so he put something, I don't know what it was, some kind of metal, against my neck, and says, ``You don't want to die, do you?' I said: ``No.' He says; ``You better turn your pocketbook loose,' and I turned it loose, and I had my hand inside of it, and as I turned it loose he snatched and tore two bills in two. I felt them tear. I knew I had it in my hand. I did not know what it was at the time. I knew it was something. He ran. I ran after him and hollered for help. Which way he went I can't name east and west and north and south. I don't know the directions. He went back toward the pavement, back up toward the filling station, because I kept straight on and went to the filling station. I went up to the first filling station. I went in and asked the man to call the law. I had been robbed. Officers came to me, the police. I know who they were. I know one of them is named Cantor. I don't remember the other one's name. I do not know who it was I told that I had been robbed. When the officers came I was at the filling station."

The officers took Brown in their car and Brown directed them to the place where he was robbed. There they found his cap, the ends of two one-dollar bills, which had been torn, and some change. As they drove away from the place, Brown identified the defendant, who was walking along the road, as the man who had robbed him. The soil near the scene of the robbery contained cinders. When the defendant was arrested, he had on one knee of his trousers soil of like composition. Brown had soil of like kind on his clothing. 1. Special grounds 2 and 3 assign error because the court submitted for the consideration of the jury robbery by intimidation. These grounds are so closely related to the general grounds that we will discuss them along with the general grounds. The defendant insists that a new trial should be granted under the general grounds as well as these special grounds, for the reason that, if the defendant were guilty of any offense at all under the evidence, it was robbery by force and violence and not robbery by intimidation. In Owens v. State, 72 Ga. App. 11 (32 S.E.2d 848), this court held that robbery by force and violence on the one hand, and by intimidation on the other hand, are not separate offenses, but are different grades of the same offense, and that it is permissible to charge them in the same count. In that same decision this court, in the second division thereof, said: "Both of our appellate courts have frequently had this question under consideration. We find from an examination of the decisions that the evidence adduced in those reported cases falls into three classes: first, where the evidence sustains robbery by force and violence only; second, robbery by intimidation only; and third, where the evidence supports both grades of robbery. If the evidence sustains the first only, robbery by force and violence, a verdict for robbery by intimidation is illegal, and vice versa. Where the evidence supports both grades, a verdict for either is sustainable." The decision in the Owens case and the citations of authority therein fully sustain the principle that the evidence in this case at least sustains a verdict of robbery by intimidation, even though we may concede that the evidence also would have supported a verdict for robbery by force and violence. So far as the general grounds and special grounds 2 and 3 are concerned, they contain no merit and show no reason why the judgment should be reversed.

2. (a) Special ground 1: Before pleading to the merits, the defendant made a motion for a continuance on account of the absence of a witness, the taxicab driver, Red Cauthen. After the robbery, the defendant remained in jail until the trial, which was July 29, 1947. At this term of court, and the day before the trial, the court appointed counsel for the defendant. The day the case was called the court continued it until the following day. The following day when the case was recalled for trial, the attorney for the defendant stated that he was not ready to go to trial on account of the absent witness, and that the witness had been subpoenaed. The evidence on this motion for continuance showed that the subpoena had been issued on the 28th, but that the sheriff had not been able to serve it; that the witness had moved, and the sheriff had been informed that the witness had last been heard of in Atlanta, but that his whereabouts at that time was unknown. The only thing that the defendant wished to prove by the absent witness was that, when the witness carried the defendant and Brown to the river and returned them to Tallapoosa about 8 o'clock, Brown was drunk. The court overruled the motion for continuance. This motion was evidently based on two grounds, which we think were not well founded; even if the taxicab driver had testified that Brown was drunk at 8 o'clock, it would not be material in showing that Brown was drunk at 11 o'clock, three hours thereafter, or that, if he was drunk or drinking, this would have authorized the defendant to rob him. Then too, the jury seems to have been well informed from the evidence that Brown was, during the afternoon and even in the early portion of the same evening, drinking beer heavily. But the officers testified that Brown was not drunk just a few minutes after the robbery, and his conduct in leading the officers to the scene of the robbery would refute the idea that he was drunk at the time of the robbery, although it may be conceded that he might have been drinking beer heavily in the early afternoon. Moreover, it does not appear that the witness for whom a subpoena had been issued was within the jurisdiction of the court or that the defendant expected to have him present at some future time. Again, the record shows that the officers inquired of the defendant if he had any witnesses, prior to the day of the calling of the case, and the defendant informed them that he did not.

(b) After the motion for continuance had been overruled, counsel for the defendant objected to the jurors who had heard the evidence on the motion for continuance being put upon the defendant. This objection was based on the ground that the court had permitted counsel for the State to go into detail concerning the details of the robbery. The judge overruled the objection with the statement that he had said in open court all along that this was merely a motion for a continuance and the defendant would be tried on the evidence after issue had been formed. We have read this ground carefully and we can not come to the conclusion that the investigation on the motion for continuance was prejudicial to the defendant's case when he was put on trial. Then again, this is a felony case, and the presumption is that voir dire questions were put to the jurors, and that they qualified under oath that they were not biased or prejudiced by having heard any of the testimony delivered on oath. We find no merit in the assignments of error under this ground.

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.