Martin v. State , 77 Ga. App. 297 ( 1948 )

1. (a) There are three ways in which assault with intent to rob may be committed under the Code, § 26-1405. As alleged in the indictment in the instant case, in the first of these ways it is not necessary to allege or prove that a demand for money was made.

(b) The offense of assault with intent to murder, and assault with intent to rob by an assault with an offensive or dangerous weapon or instrument, where the evidence supports an intent to murder and an intent so to rob, the offender may be convicted of assault with intent to murder and assault with intent to rob. Under the provisions of the Constitution of the State of Georgia, Code § 2-108, they are not the same offenses, although they include the same occasion, time and place.

DECIDED JUNE 9, 1948. The defendant was convicted of assault with intent to rob. His motion for a new trial was overruled and he brings his case here for review. The material parts of the indictment allege that on August 14, 1947, the defendant "did then and there unlawfully with force and arms unlawfully and maliciously make as assault upon the person of Everett Bagwell, cashier of the Bank of Duluth, Georgia, then and there while Everett Bagwell was seated at his desk in said bank, with an offensive and dangerous weapon, said weapon being a forty-five caliber automatic pistol, with intent then and there to rob the Bank of Duluth, Georgia, and Everett Bagwell, and the said J. T. Martin did then and there hit Everett Bagwell on his head with said pistol, and after having maliciously struck Everett Bagwell on his head with said automatic pistol, was then and there detected, intercepted and prevented from executing said robbery." Before pleading to the merits, the defendant filed a plea of former jeopardy, or autrefois convict. There was attached to his pleading a copy of the indictment on which he was alleged to have been convicted. The essential portions of that indictment are that on August 14, 1947, the defendant "did then and there unlawfully and with force and arms and with a certain forty-five caliber automatic pistol, said pistol being a weapon likely to produce death, the said James T. Martin did unlawfully, wilfully, feloniously and with malice aforethought, assault, beat, cut, and wound Everett Bagwell, a human being, with intent then and there to kill and murder him, the said Everett Bagwell." As a part of the plea of former jeopardy, and as a part of the exhibit, it is shown that the jury returned a verdict of guilty against the defendant for assault and battery. On motion of the solicitor-general, the plea of former jeopardy, after argument had, was stricken, and the trial on the indictment in the instant case proceeded to conviction. Exceptions pendente lite were filed to the judgment striking the plea of former jeopardy. The judgment of the court sustaining the motion to strike the plea of former jeopardy is assigned here as error.

The evidence in the instant case reveals that the defendant drove to the Town of Duluth, Georgia, in his automobile. He arrived there between 9 and 10 in the morning. He remained in the town during the most of the rest of the day and until the events hereinafter related took place. The defendant rode around town in his automobile. He finally parked his automobile off to the side of the Atlanta-Gainesville highway. He hid it in some pine trees some distance from the Bank of Duluth. While the defendant was around town and until after the event for which he was indicted, he was dressed in shoes with thick bottoms, with red cleats, wore a tan hat, blue shirt, tan pants, and wore dark glasses which almost completely hid his features. The defendant spent most of the day while in Duluth sitting on a bench in front of the post office, across a street from the Bank of Duluth. There he was observed by several of the witnesses. At least one of them was particularly impressed with his mode of attire. Around 2:30 or 3 p. m., the defendant went into the Bank of Duluth and obtained change for a five dollar bill. Thereafter, and only a few minutes before the closing time for the bank, the defendant entered the bank again. He stood at a desk in the lobby of the bank for several minutes fumbling in and looking over papers in a brief case. He then went to a window of the bank and asked to see the cashier. He represented to the cashier, Mr. Bagwell, that he was a Federal investigator checking up on accounts of veterans, stating that someone else was getting their checks. The cashier informed the defendant that he had not cashed any such checks, and requested the defendant to furnish him names of the parties. The defendant then called off several names. The cashier informed the defendant that he knew of no such persons living in the community by those names. The defendant requested the cashier to take certain names which the defendant would give him. Thereupon the cashier stepped into the director's room and seated himself by the table preparatory to taking the names. The defendant took a position standing to the left side of the cashier with one hand in his brief case. While thus situated, the defendant and the cashier had a conversation concerning the cashing of the checks which the defendant was purporting to investigate. After the cashier had written several names, he was violently struck on the head by the defendant with a forty-five caliber pistol. Upon being struck, he made some sort of complaining outcry. The wife of the cashier and another lady assistant, hearing the commotion, ran from the front of the bank into the director's room. The cashier was bleeding considerably from the blow, and was immediately carried to the hospital for treatment. In the meantime the defendant with a pistol in his hand made his exit from the director's room through a back door entering into the street. The defendant made his way from the bank to the side of a fence or enclosure around a warehouse. A fire alarm was sounded. People began to run in the opposite direction from that in which the defendant was going. One witness, not knowing what was happening, went for some distance along with the defendant. The defendant made his get-away over the warehouse fence and a short distance therefrom laid down his brief case with his record therein, the glasses he was wearing, his hat, the pistol, the jumper and shirt. After so disrobing himself of his disguise, he made his way to his hidden car. There were some witnesses who saw him enter his car, back it out into the road and start toward Gainesville. Some of the parties who saw him enter his car notified the police and the defendant was arrested a short distance from Duluth on the road to Gainesville. He was driving away at a very rapid rate of speed. Thus briefly, but substantially, is the material evidence which supports the verdict returned. 1. It is conceded by counsel for the defendant that there are but two questions involved. We will discuss them.

(a) Is the evidence sufficient to sustain the verdict of assault with intent to rob? We think it is. Counsel for the defendant bases his contention that it is not, on the ground that the evidence does not reveal that the defendant made any demand for money. As we construe the law as applicable to the indictment in the instant case, no demand is necessary. The defendant was indicted under the Code, § 26-1405. Assault with intent to rob under this section may be committed in three ways: "(1) By unlawfully and maliciously assaulting another with any offensive or dangerous weapon or instrument, with intent to commit robbery upon such person; (2) by menaces, demanding any money, goods, or chattels of or from any other person, with intent to commit robbery upon such person; and (3) by any forcible or violent manner, demanding any money, goods, or chattels of or from another person, with intent to commit robbery upon such person." Erwin v. State, 117 Ga. 296, 297 (43 S.E. 719). The instant indictment was drawn under the first of these ways mentioned. It was not necessary to allege or prove in such an indictment as is before us that a demand for money was made. It was only necessary to prove, under the indictment, that the attack was made with "any offensive or dangerous weapon or instrument with intent to commit robbery." (Italics ours.) It was undisputed that the assault was made with an offensive and dangerous weapon and instrument. Whether such assault was made with intent to rob was a question for the jury, and the evidence amply authorized the jury to find that the assault was made with intent to rob. This is evident by the defendant disguising himself, waiting until closing time until the bank would be without customers present, and the conduct of the defendant both before and after the assault. This contention is without merit.

(b) We come next to consider whether the court committed reversible error in sustaining the motion of the State to strike the plea of former jeopardy, or autrefois convict. He did not. This question has been dealt with learnedly and exhaustively in a decision of the Supreme Court in the case of Harris v. State,193 Ga. 109 (17 S.E.2d 573, 147 A.L.R. 980). Since we have set out in the statement of the record in the instant case that the first contention of the defendant was based on an indictment for assault with intent to murder involving the same occasion, at the same time and place, and in connection therewith have also set out that the conviction of the defendant for assault with intent to rob in the instant case, involved the same occasion, at the same time and place upon which the conviction was had in the former case, we think it is unnecessary for us to elaborate further on the question. The two offenses for which the defendant was convicted, the one in the former trial and the one in the instant case, are not the same offenses within the purview of the provisions of the Constitution of this State (Code, § 2-108). That section reads: "No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his, or her own motion for a new trial after conviction, or in case of mistrial." During the course of the opinion in Harris v.State, supra, the Supreme Court said: "The record in this case shows that the defendant was first tried for murder in a transaction where the victim was also robbed, and that the defendant was last tried for robbery in the identical transaction where the victim was murdered. Under the preceding rules as well as under the weight of authority, the two offenses are not identical as a matter of law."

The court did not err in overruling the motion for a new trial.

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