Alexander v. State

• Decision Date: 06 March 1942
• Docket Number: 29318.
• Parties: ALEXANDER v. STATE.
• Court: Georgia Court of Appeals

19 S.E.2d 353

66 Ga.App. 708

ALEXANDER v. STATE.

No. 29318.

Court of Appeals of Georgia, Division No. 1.

March 6, 1942

G B. Walker, of Alpharetta, and H. E. Edwards and H. C Holbrook, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., E. E. Andrews, and Durwood T. Pye, all of Atlanta, for defendant in error.

MacINTYRE Judge.

1. William Alexander was convicted under Code, § 26-1405, which provides: "An assault with intent to rob is where any person shall, with any offensive or dangerous weapon or instrument, unlawfully and maliciously assault another, or shall, by menaces, or in and by any forcible or violent manner, demand any money, goods, or chattels of or from any other person, with intent to commit robbery upon such person." W. N. Rudisill, the person upon whom the alleged crime was committed, had, two days prior to the date thereof, bought from the defendant certain automobile tires which Rudisill testified had been paid for in cash and which the defendant claimed had not been paid for. Rudisill operated a filling station and grocery store near Alpharetta Georgia. On the occasion of the purchase of the tires, the defendant had seen Rudisill with about $100 in money in his pocket book when Rudisill paid him for the tires. About 10:30 o'clock the next night the defendant came to Rudisill's home after he had retired and under the pretense of wanting gas pursuaded Rudisill to come outside. Rudisill testified that the following transpired "I didn't see any automobile at that filling station or about that place anywhere. *** He [the defendant] stepped out from behind a telephone post just about the time I got even with it, and he threw that shotgun on me and he said: 'Give me your money.' I still didn't see any car out there. And I said: 'What do you mean, Bill?' and he said: 'I mean business, I am in all kinds of trouble and I have got to get out of it. Don't talk back to me, go on and get in that car.' And I said to him: 'Bill, turn me loose, you can't do this to me.' And he said: 'Don't you talk back to me, I'm going to kill hell out of you, go on and get in that car.' And that time he pulled the gun up, and I could hear it click twice, so I knew he pulled both hammers back, and I said to myself, 'He is going to shoot me if I don't do something quick, I am going to take a chance on running.' So I started to run, and he snapped the gun twice, and by that time by running I got in the house," and called the police. We think the jury were authorized to find the defendant guilty as charged.

2. We will consider special grounds 1, 4, 5, 6, and 7 together. The defendant contends in ground 1, in his brief, that the judge erred in referring to the crime charged as an "attempt to commit the offense of robbery," on the ground that it was misleading and not supported by the charge in the indictment, and that it authorized a finding of guilty whether the jury believed that an assault had been committed or not; and he contends in grounds 4, 5, 6, and 7, in his brief, that the judge erred in referring to the crime charged as "the offense of attempted robbery," as this was prejudicial error in that it relieved the State of proving any allegation in the indictment, because the indictment charged assault with intent to rob, whereas the charge covered an entirely different crime, to wit, an attempt to commit robbery.

Our Code, § 26-1401, defines an assault as "an attempt to commit a violent injury on the person of another." This definition is in substance the same as that of the common law, the courts of this State, this country, and England. Edwards v. State, 4 Ga.App. 167, 168, 60 S.E. 1033; Williams v. State, 15 Ga.App. 306, 310, 82 S.E. 938. There is, of course, a distinction between merely "an intent" and "an assault," as was recognized in Johnson v. State, 14 Ga. 55, 60. In that case the court held that in crimes which require force (here the crime charged was assault with intent to rob by force) as an element in their commission, there is no substantial difference between an assault with intent, and an assault with attempt to perpetrate the offense. See, also, Smith v. State, 126 Ga. 544, 546, 55 S.E. 475; People v. Akens, 25 Cal.App. 373, 374, 143 P. 795; Wilson v. State, 53 Ga. 205, 206; Thomas v. State, 99 Ga. 38, 26 S.E. 748; Griffin v. State, 26 Ga. 493; Minor v. State, 56 Ga. 630, 631, 633; 4 Words and Phrases, Perm. Ed., pp. 399, 766. Here the crime charged in the indictment was "assault with intent to rob" as defined in Code, § 26-1405, supra. An assault to commit a designated crime does not necessarily embrace all the various phases of attempting to commit that crime, but an assault with intent to commit the crime of robbery is one of the phases of attempting to commit the crime of robbery. An attempt to commit a crime consists of three elements; first, the intent to commit the crime; second, the performance of some overt act towards the commission of the crime (in the instant case, it is the assault as stated in Code, § 26-1405); and, third, a failure to consummate its commission. 4 Words and Phrases, Perm.Ed., p. 748; Code, § 27-2507.

The word "attempt" is generally used in law in describing the offense of an unsuccessful effort to commit a crime, but it has no technical meaning importing sufficient legal certainty as to the manner or means used, and the intention of the wrongdoer (any more than the words "cheating and swindling" or "manslaughter" describe the various ways of committing cheating and swindling, or the various ways of committing the three kinds of manslaughter). The force and effect of the word "attempt" as used in the instruction depends upon the context. 4 Words and Phrases, Perm.Ed., p. 747; United States v. Ford, D.C., 34 F. 26, 27.

The judge charged Code, § 26-2501, which defines the offense of robbery, and then charged Code, § 26-1405, supra, which defines an assault with intent to rob, and immediately thereafter stated: "Now, I have given you the definition of the law that this indictment charges this defendant violated. The burden is on the State to establish each and all of the material allegations in this bill of indictment, and all the allegations are material. ***" The indictment charged the preliminary facts that constituted the ultimate fact of the alleged assault with intent to rob. After the judge in the first sentence of his charge, used the general words that the defendant was charged in the indictment "with the offense of an attempt to commit the offense of robbery" (italics ours) he thereafter descended into particulars and instructed the jury that the grand jurors in the indictment charged the defendant with an assault with intent to rob, and then, in the very language of the body of the indictment, which charged an assault with intent to rob, he enumerated the concrete facts charged therein which, all taken together, constituted the essential elements of the crime charged, and then told them the State must prove all of these facts and among these facts essential to be proved was "the assault." "It is a permissible and correct form of charge for the judge to enumerate the acts and conduct constituting all the essentials of the offense charged, and to instruct the jury that if proved beyond a reasonable doubt, these will be sufficient to authorize a conviction, but that a failure to prove any one of the essentials will require an acquittal." Collins v. State, 66 Ga.App. 325, 18 S.E.2d 24, 25. We think that the jury knew, according to the court's instruction, it was necessary in order for them to convict the defendant of assault with intent to rob (the crime charged in the indictment) that "the assault" charged in the indictment must be proved together with all the other essential elements of assault with intent to rob, the crime charged in the indictment. We therefore do not think the exception discloses reversible error.

3. The excerpt from the charge complained of in ground 2 with reference to the defendant's statement is almost...