Bogan v. State
| Decision Date | 20 February 1981 |
| Docket Number | No. 61389,61389 |
| Citation | 158 Ga.App. 1,279 S.E.2d 229 |
| Parties | BOGAN v. The STATE. |
| Court | Georgia Court of Appeals |
Theron Finlayson, Harry J. Fox, Jr., Perry, for appellant.
Stephen Pace, Jr., Dist. Atty., James E. Hardy, Asst. Dist. Atty., for appellee.
The defendant appeals his armed robbery conviction. The enumerations of error are that the evidence does not support the verdict and fails to establish the defendant was a party to the crime. Code Ann. § 26-801 (Ga.L.1968, pp. 1249, 1271).
The following relevant facts were adduced on trial. At approximately 11:00 p. m. on November 27, 1979, an attendant at a Warner Robins service station was robbed by two black males carrying revolvers, one silver and the other black. One of the robbers wore a bluish-green ski mask and the other wore a brown wig with pink curlers. They obtained approximately $45 and left on foot. The police were notified and within minutes one officer observed two persons enter an unlighted automobile stopped on a road about a block or 600 feet from the scene of the crime. The automobile left "in quite a hurry, he stepped down on it and left in an extreme hurry." The officer gave chase and with the assistance of other officers stopped the car. Four black males were occupying the vehicle, the defendant being the driver and owner thereof. Discovered in the back seat of the vehicle were a ski mask, a wig with pink curlers and two guns.
The defendant testified that, at the request of one of his brothers, he, two of his brothers and one Solomon drove to Warner Robins from Perry. The automobile began to run hot and he stopped to put water in the radiator. His brother and Solomon got out and told him they were going to the service station to purchase a six pack of beer. They returned, the defendant drove off and was subsequently stopped by the police. The defendant denied knowledge of his companions' intentions prior to, during or after the robbery up to his arrest. Held:
Insofar as it is here applicable Code Ann. § 26-801(b) provides: "A person is concerned in the commission of a crime only if he: ... intentionally aids or abets in the commission of the crime." One who is constructively present, aids and abets in the commission of a crime was formerly referred to as a principal in the second degree. Schmid v. State, 77 Ga.App. 623, 632, 49 S.E.2d 134 wherein it was held in defining an accessory "If he is constructively present, keeping watch at some convenient distance and not the perpetrator, he is a principal in the second degree." See 22 C.J.S. 254, Criminal Law, § 86(b); 21 Am.Jur.2d 197, Criminal Law, § 121.
In an early case Pirkle v. State, 11 Ga.App. 98, 74 S.E. 709 this court found the defendant was aiding and abetting a robbery, where he drove his buggy in front of the victim's carriage, but remained inside while two others robbed an individual and then the three drove off. This court pointed out: "Keeping watch, where several join together to commit a crime, makes the watcher a principal in the second degree, and in this case, if the jury believed that the accused did nothing more than to stand by, holding the horse and buggy so that his confederates might have a convenient opportunity of escape after the commission of the crime, they would have been authorized to find that he was aiding and abetting." Accord, Fleming v. State, 149 Ga.App. 781, 256 S.E.2d 56.
"It has been held that mere presence at the scene of a crime or where criminal acts are committed, even when coupled with flight, is insufficient to authorize conviction." Williams v. State, 126 Ga.App. 350, 355, 190 S.E.2d 785.
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