Geter v. State , 226 Ga. 236 ( 1970 )

Phr Curiam.

William Geter, Jr., was jointly indicted with Marshall McClendon and charged with the offense of robbery by use of an offensive weapon. Geter pled not guilty and upon his separate trial before a jury and a judge of the Fulton Superior Court he was convicted and sentenced to serve four years in the penitentiary. The case was carried originally to the Court of Appeals and by that court transferred to this court, since the appellant had been convicted of a capital felony.

The evidence on behalf of the State would have authorized the jury to find that the victim, one Robert H. Adams, and. his companion, James Daniell, were walking eastwardly along Walton Street near the intersection of Fairlie Street in the City of Atlanta at about 8 o’clock in the evening;- that as they - approached the intersection, a number of persons were waiting at a bus stop located there, among them being the accused Geter, his co-indictee McClendon and a third man who escaped and remains unidentified; that the three accosted Adams and Daniell and asked Adams if he were not “the man that killed Martin Luther King”; that the victim and his companion tried to ignore the remark and tried to proceed but their paths were blocked by the three; that the accused pulled a .22 caliber pistol out of his coat pocket and held it on the victim and his companion saying several times “don’t move or I’ll let you have it”; that the other two pulled out knives and threatened to slash Adams and Daniell; that one of the two, other than the accused Geter, snatched a briefcase from the possession of Adams, and Adams and his companion fled the scene, called the police, and returned to the scene where they identified the accused and Mc-Clendon, and where they subsequently recovered the briefcase from a trash pile where it had been thrown, and recovered its contents which had been emptied onto the sidewalk.

The accused testified under oath, and his-testimony and the other evidence in his behalf tended to contradict that for the State,. and to explain his presence at the scene of the alleged crime consistently with his innocence. This evidence, however, merely raised issues of fact which were for the jury to resolve; and, the jury having resolved those issues against the defendant, we cannot say that the evidence was insufficient to authorize the verdict of guilty.

In ground 2 of ’ appellant’s enumeration of errors he contends that the trial court erred in instructing the jury on the law- of conspiracy because the evidence did not authorize such a charge. It is well established in this State that conspiracy may be shown by circumstantial, as well as direct evidence. Turner v. State, 138 Ga. 808, 812 (76 SE 349); Mills v. State, 193 Ga. 139, 148 (17 SE2d 719); Simmons v. State, 196 Ga. 395 (1) (26 SE2d 785); Lathan v. State, 211 Ga. 716 (3) (88 SE2d 379). Where, as in this case, three persons are shown by the evidence to have accosted the victim with drawn weapons, surrounding him and blocking his path of escape, and where one of the three snatched the article alleged to have been taken from the victim, such evidence was sufficient to authorize the-jury to infer a conspiracy on the part of the three to perpetrate-the robbery with which the accused and one of the other two were charged. Smith v. State, 108 Ga. App. 275, 276 (132 SE2d 821). Under these circumstances, the evidence was sufficient to authorize the judge to charge the jury the law of conspiracy.

Enumerated errors 3 and 4 complain of the italicized portions of the' following instructions: “I further charge you, Lady and Gentlemen, that in the crime charged in this bill of indictment, the question of intent is a material element that goes to make up such an offense or such a crime and the law says that intent may be shown in many ways, provided the jury finds that it existed from the evidence produced before them, that it may be inferred from proven circumstances or by acts and conduct, and that it may be presumed when it is the natural and necessary consequences of an act.” The first italicized language was not error when considered in context with the whole charge. With respect to the second italicized portion of the foregoing charge, it is sufficient to say that, though it may be conceded that it is erroneous and that the act must be the necessary consequence of the intent in order for the jury to infer intent, it is not apparent how this inapt statement could have been harmful to the appellant. This charge did not constitute reversible error.

The indictment in this case, returned on April 30, 1968, was drawn in one count. It charged the indictees with the offense of robbery in that they did on a stated date “wrongfully, fraudulently and violently by offering and threatening to shoot one Robert H. Adams with a pistol, which accused exhibited, the same being an offensive weapon and one likely to produce death when used in its usual and customary manner, . . . and by offering and threatening to cut the said Adams with a knife, which accused exhibited, the same being an offensive weapon, and by intimidation, and by suddenly snatching, take from the person of the said Adams, without his consent, and with intent to steal the same,” a described article of personalty. Properly construed, this indictment charged the defendant only with the offense of robbery by the use of an offensive weapon, since, as this court has held in a full bench decision, where it is charged that an offensive weapon is used to commit the offense of robbery, there cannot be robbery by intimidation within the contemplation of the statute. Daniels v. State, 219 Ga. 381, 385 (133 SE2d 357). By a parity of reasoning the use in an indictment of the phrase “by suddenly snatching,” where it is otherwise clearly charged that an offensive weapon was used to commit the offense, cannot reduce the charge to the lesser offense of robbery by sudden snatching. Properly construed, such an indictment will be taken as merely describing the way and manner in which the robbery by use of an offensive weapon was accomplished. Therefore, under the ruling in the Daniels case, supra, it was not error for the court to fail to define in its charge “robbery by intimidation” or “robbery by sudden snatching.” This is true because the indictment does not charge the lesser offense of robbery by intimidation and robbery by sudden- snatching (Daniels v. State, supra), and because the evidence shows without dispute that the crime of robbery was committed by the use of offensive weapons. The fact that the accused and his accomplices gained possession of the article taken from the victim by snatching the same from his possession does not operate to reduce the offense since such evidence shows that at the time the snatching took place, the victim and his companion were under the restraint of offensive weapons. It was not error for the court to fail to define those lesser offenses as complained of in the 5th ground of enumerated errors.

Enumerated error 6 is as follows: “The trial court erred in charging 'on the other hand, if you do not believe the defendant to be guilty, or if you should have reasonable doubt as to his guilt, you should acquit the defendant in this case/ without also charging that if two theories, one of guilt and one consistent with innocence, appeared from the evidence, it would be their duty in accordance with the previous charge of the court, to accept the theory consistent with innocence and to acquit the defendant.” The charge claimed to be omitted was adequately given in the following language by the court: “I further charge you that where the facts and evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence.” This enumerated error is without merit.

The seventh ground of enumerated errors is as follows: “The court erred in failing to charge the jury specifically upon the issues raised by the sworn testimony of appellant and other witnesses in his behalf which presented an affirmative defense not confined to the general plea of not guilty.” Nowhere in the brief and argument of counsel in support of this ground does counsel for the appellant set forth what language it is contended' the court should have Charged the jury. The court fully and adequately instructed the jury as to their duty to acquit the defendant if upon a consideration of all of the evidence they entertained a reasonable doubt as to his guilt. This ground is without merit.

Enumerated error 8 is deemed abandoned by the failure to argue it.

Judgment affirmed.

All the Justices concur, except Felton, J.,. who dissents.