Foster v. State, 27918
| Decision Date | 31 May 1973 |
| Docket Number | No. 27918,27918 |
| Citation | 230 Ga. 666,198 S.E.2d 847 |
| Parties | Jerome FOSTER v. The STATE. |
| Court | Georgia Supreme Court |
Richard M. Nichols, Macon, for appellant.
Fred Hasty, Dist. Atty., Walker P. Johnson, Jr., Macon, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Daniel I. MacIntyre, Asst. Attys. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
Appellant was convicted of aggravated assault and murder. He was sentenced to 10 years and life to run consecutively. He appeals. Held:
1. The evidence shows that on August 9 about 4:00 p.m. in Macon, Georgia, the defendant, Charlie Jacobs, and Ernest Eugene Johnson entered Miller's Drive-In grocery store. Present in the store were Mrs. Miller, her 22 year old grandson who worked there, and another woman employee. Ernest Eugene Johnson pointed a pistol at Mrs. Miller and then hit her on the head with it. Charlie Jacobs shot twice and killed the grandson, Charlie Jacobs attempted to open the cash register but failed. The three men fled in an automobile. The defendant in an unsworn statement admits being present but states that Jacobs and Johnson went in the store to get a sandwich while he stayed in the car. Then he saw he needed a pack of cigarettes and went in the store and got caught in the robbery. He stated Jacobs told the grandson to open the cash register and when he refused he shot him. He further stated the other men forced him to leave with them. The state introduced evidence that approximately four hours prior to the crime for which the defendant was being tried, O'Ranger Supermarket, a grocery store, was robbed by the defendant, Charlie Jacobs and Miller Hollingshed. They pretended to be making a purchase of some small items, handed the operator a $20 bill and when she opened the cash register Charlie Jacobs pointed a pistol at her and the store was robbed. The evidence shows that the appellant had a gun at this time but did not draw it. Enumerated error No. 1 contends the trial court erred in allowing into evidence other criminal acts alleged to have been committed by the defendant for which he was not on trial. We do not agree. Evidence of the prior alleged robbery was admissible to show motive and intent. Morris v. State, 228 Ga. 39, 45, 184 S.E.2d 82.
Enumerated error No. 2 that the trial judge erred in not granting a mistrial because the defendant's character was placed in issue by evidence of the prior alleged robbery is without merit.
Enumerated error No. 3 contends the trial court's charge on the 'Felony Murder Rule' was error in that he limited the rule to armed robbery and did not include aggravated assault. Appellant argues, There is no merit in this contention. The grandmother was the victim of the aggravated assault and the grandson was killed, both of which crimes occurred during the armed robbery. The aggravated assault, the armed robbery, and the felony-murder are separate crimes. Lindsey v. State, 227 Ga. 48, 52, 178 S.E.2d 848, 851; Warren on Homicide, 318, 329, § 74. See Code Ann. § 26-506(a) (Ga.L.1968, pp. 1249, 1267).
3. Enumerated error No. 4 contends the court erred in failing to charge on withdrawal from a conspiracy. We do not agree. We have read the record thoroughly and find no evidence that the defendant made any attempt to withdraw from the conspiracy. The defendant contended that he was never a part of any conspiracy. The trial judge charged...
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