Nelson v. State

• Decision Date: 12 February 1948
• Docket Number: 16087.
• Citation: 46 S.E.2d 488,203 Ga. 330
• Parties: NELSON v. STATE.
• Court: Georgia Supreme Court

46 S.E.2d 488

203 Ga. 330

NELSON v. STATE.

No. 16087.

Supreme Court of Georgia

February 12, 1948

Syllabus by the Court.

1. The charge of the court on conspiracy was not erroneous because conspiracy was not charged in the indictment.

2. The evidence did not require a finding that the defendant acted under compulsion or intimidation, and the court did not err in failing to charge, without request, as contended in ground 5 of the amended motion for new trial.

3. There can be no robbery without an intent to steal, and the failure so to instruct the jury in this case is such error as to require the grant of a new trial.

4. The court erred in failing to charge the jury on the punishment for robbery by intimidation, and in so confusing the charge that the jury might have believed that the punishment for robbery by intimidation is the same as that for robbery by open force and violence.

Sammie Lee Nelson was indicted by the Grand Jury of Crisp County the indictment charging that he 'did then and there unlawfully and with force and arms, wrongfully, fraudulently and violently, by open force and violence and by intimidation, take from the person of J. R. Meeks, without his consent and against his will a key ring and set of keys and one leather bill folder and Forty Dollars in lawful currency of the United States, the property of the said J. R. Meeks and of the value of Forty-Five Dollars.'

J. R. Meeks, the Sheriff of Crisp County, was the only witness for the State on the trial of the case. The material part of his testimony was as follows: 'On July 10, 1947, Sammie Lee Nelson and Tommie Reed were confined in the jail of this county under lawful warrants. * * * About eight thirty at night * * * I went up to the run-around where these men were. * * * They were together in what is known as the run-around and there were no other prisoners in there with them. I had turned them out of their cells that morning where they could walk around, and I went back to put them back in their cells for the night. I had been keeping them in individual cells at night time. When I got up there on this night, I was confronted with a nickel-plated pistol pointed at me with the hammer pulled back. This pistol was held by Tommie Reed, and as he pointed the pistol at me he said, 'You all had me, now I got you, I want the keys--I am going to leave here.' I had the jail keys in my hand--they consisted of a set of keys on a ring--the keys to the jail. When he said that, I told him to come and get them. * * * He said, 'No, you throw the keys on the floor.' When I first got up there, this boy that had been in there a good many days, he usually goes right in the cell. I never had to tell him to go in there, I mean Sammie Lee Nelson. Well, I didn't throw the keys on the floor, and I looked to see, and this boy failed to go in the cell, and I didn't know whether he had one or not, as he had had a good bit of company in there. I threw the keys to the side then, and he said, 'Pick them up,' and I had plenty of time to look and I knew it was a gun and I walked toward this boy and when I turned, Tommie Reed was about the same distance to this boy then and he was standing at my back and I stepped in the cell door, and when I stepped in there this Nelson boy pulled a lever down and shut the door while the negro stood there. that put me facing the two prisoners. Then Sammie Lee Nelson got a little closer, and this negro boy had his pistol and he told the other boy, Sammie Lee Nelson, to reach in and see if I had a pistol and he saw I didn't and he got my purse. Sammie Lee Nelson got my purse. Before that, the negro told him to see if I had a pistol, and Sammie Lee Neslon felt in my hip pocket. I was dressed then just as I am now, no coat--just in my shirt sleeves, and Nelson felt about my hip pocket, and the negro said something about searching me--Tommie Reed told him to feel and see what I had. Just before this I told Sammie Lee Nelson, I said, 'You are going to make a big mistake if you leave with this negro,' and he didn't make any reply, and when he felt me, he said, 'He has got nothing,' and Tommie Reed said, 'Nothing at all?' and Sammie Lee said, 'Nothing but a billfold,' and Tommie Reed said, 'You had better get that.' I never moved and he pulled that out; then they started out and he said, 'We better do something about his hollering,' and I said, 'I see no need to holler--nothing to holler about,' and then both of them made a dash and run out. They went out together. They locked me in the cell, Sammie Lee did that, and Sammie Lee Nelson is the one that searched me to see if I had a gun. Sammie Lee Nelson took the billfold from me, a tan leather billfold, with about forty dollars in lawful coin of the United States in it. * * * The billfold was in my left hip pocket, and we were standing facing each other, and he reached around behind my back to get the billfold while the negro stood there with the pistol drawn on me. And while the negro kept me covered with that pistol, Sammie Lee Nelson searched me and took my pocketbook. The negro suggested that he take my pocketbook, and he did. * * * At the time this happened, my automobile was parked between the jail and the courthouse; I heard them go down the steps and step in the car and drive off. I could see my automobile. I saw it leave but I could not see who was in it--I couldn't see them. The troopers broadcast this over their radio--I notified the State troopers what had happened, and Sammie Lee Nelson was finally located. Sheriff Hudson and myself found him in a closet down in Worth County. * * * I had not located him from July 10, 1947, until last Tuesday or Wednesday--about a week. All the facts I have just related took place at the jail of Crisp County, Georgia, located in the City of Cordele, Crisp County, Georgia.'

On cross-examination, Sheriff Meeks testified in part as follows: 'I have known Sammie Lee Nelson only since I had him in jail; I would say around thirty days, * * * I had had this negro Tommie Reed in jail--I put him in on Wednesday sometime in the day and this happened Thursday night. There was no connection between locking up this boy Sammie Lee Nelson and locking up the negro Tommie Reed--that is, they were not connected with the same crime, and as far as I know they were strangers. If they entered into a conspiracy to rob me and escape, it was up there in the jail within a day and a half. * * * I have not been able to locate the negro up to this time. * * * With reference to whether the negro appeared to be the head man in everything that was done, and this boy Sammie Lee Nelson aided and abetted and joined in--this boy stayed outside his cell before, he had to know it was going to start. He knew it was going to happen. Yes, sir, the negro was the one who pointed the pistol at me, and the negro was the one who told Sammie Lee Nelson to get my pocketbook, but he had a chance to go in his cell, which he usually did, and he didn't do that.'

The material part of the defendant's statement was as follows: 'They put him [Tommie Reed] up there on Wednesday before we got out on Thursday. He said they had him up there for something he didn't do. When they put him up there he had the pistol in his shirt pocket with a little tight sweater on and another jacket on top of it. He said he was going to get out on Wednesday, but the sheriff locked us up a little earlier than he had been locking us up, and then when the sheriff come to lock us up and the sheriff come in the door, he stuck the gun on him and I don't know what all he said to the sheriff. The sheriff dropped the keys at the door and he told him to come back and get in my cell. The sheriff got in my cell and I pushed the door to and locked it. He told me to search the sheriff to see if he had a gun, and I did and he didn't have a gun on him. He told me then to get his billfold and I didn't want to do that but I did anyway, and when we come down he come out the door first and he was the one that drove the sheriff's car off.'

The jury returned a verdict of guilty with a recommendation of mercy, and the defendant was sentenced to life imprisonment. The motion for new trial, as amended, was overruled by the trial judge, and the exception is to this judgment.

Williamson & Crowe, of Sylvester, and Robley D. Smith, of Tifton, for plaintiff in error.

Harvey L. Jay, Sol. Gen., of Fitzgerald, Eugene Cook, Atty. Gen., and Margaret Hartson, of Atlanta, for defendant in error.

HEAD Justice.

1. Special ground 4 of the amended motion for new trial complains that the charge of the court, that 'The State in this case contends that this defendant, acting conjunctively with Tommie Reed who was in the jail at the time, and acting in concert and in conspiracy with the negro, Tommie Reed, etc.,' was prejudicial to him, in that the indictment did not charge him with the offense of conspiracy or that he acted in concert and conjunctively with Tommie Reed, and because the evidence showed that Tommie Reed at all times had possession of the pistol and that he acted under the command and direction of Tommie Reed.

This charge was not erroneous, as contended, for the reason that the indictment did not expressly charge the defendant with conspiracy. Harris v. State, 188 Ga. 752, 4 S.E.2d 651; Johnson v. State, 188 Ga. 771, 773, 4 S.E.2d 639. The defendant and Tommie Reed were jointly indicted, and the State was contending that the robbery was committed by the concerted action of both. There was sufficient evidence that the robbery was a joint criminal enterprise to authorize the court to submit this contention of the State to the jury.

2. Ground 5 insists that the evidence showed that everything that the defendant did in connection with the crime charged...