Holcomb v. State, 27803

• Decision Date: 25 April 1973
• Docket Number: No. 27803,27803
• Citation: 198 S.E.2d 179,230 Ga. 525
• Parties: James R. HOLCOMB v. The STATE.
• Court: Georgia Supreme Court

Page 179

198 S.E.2d 179

230 Ga. 525

James R. HOLCOMB v. The STATE.

No. 27803.

Supreme Court of Georgia.

April 25, 1973.

Syllabus by the Court

The question certified by the Court of Appeals is answered in the affirmative.

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Atlanta, for appellee.

MOBLEY, Chief Justice.

The Court of Appeals has requested instructions from this Court upon the following question:

'Where the evidence establishes that an accused committed a robbery by the use of an offensive weapon may he or his co-conspirator be convicted of the 'lesser included offense' of robbery by intimidation?

'See Section 26-1901 (Ga.L.1968, pp. 1249, 1298); Section 26-1902 (Ga.L.1968, pp. 1249, 1298; 1969, p. 810) of the Criminal Code of Georgia. Compare Rider v. State, 226 Ga. 14(1), 172 S.E.2d 318, with Hill v. State, 229 Ga. 307, 191 S.E.2d 58; Watson v. State, 229 Ga. 573, 574(1), 192 S.E.2d 897; Tenney v. State, 230 Ga. 49, 195 S.E.2d 410.'

Code Ann. § 26-1901 provides: 'A person commits robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another (a) by use of force; or (b) by intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another; or (c) by sudden snatching. A person convicted of robbery shall be punished by imprisonment for not less than one nor more than 20 years.' Ga.L.1968, pp. 1249, 1298.

Code Ann. § 26-1902 provides: 'A person commits armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. The offense robbery by intimidation shall be a lesser included offense in the offense of armed robbery. A person convicted of armed robbery shall be punished by death or imprisonment for life, or by imprisonment for not less than one nor more than 20 years.' Ga.L.1968, pp. 1249, 1298; Ga.L.1969, p. 810.

In Wilson v. State, 229 Ga. 224(3), 190 S.E.2d 78; Hill v. State, 229 Ga. 307, 191 S.E.2d 58, supra; Watson v. State, 229 Ga. 573, 574(1), 192 S.E.2d 897, supra; and Tenney v. State, 230 Ga. 49, 195 S.E.2d 410, supra; the question for determination by this court was whether evidence which authorized a conviction of armed robbery required a charge to the jury on robbery by intimidation. In each of the cases this court stated that it was not error to fail to charge on robbery by intimidation since the evidence would not authorize a conviction of that offense. After further consideration of Cdoe Ann. § 26-1902, we are unanimously of the opinion that we were in error in these decisions in holding that the evidence would not authorize a conviction of robbery by intimidation. Rather, we should have held that the failure to charge on robbery by intimidation was not error because the evidence did...