Osteen v. State, 33280
| Decision Date | 30 January 1951 |
| Docket Number | No. 33280,No. 2,33280,2 |
| Citation | 83 Ga.App. 378,63 S.E.2d 692 |
| Parties | OSTEEN v. STATE |
| Court | Georgia Court of Appeals |
1. The evidence authorized the verdict finding the defendant guilty of robbery by intimidation.
2. In view of the corrective measures taken by the court and the absence of any evidence that the trial court's refusal to go further and declare a mistrial was an abuse of his discretion, the trial court did not err in overruling the defendant's motion for a mistrial based upon the ground that the State had placed the defendant's character in issue when the defendant had not first introduced the issue of his character.
Clifton Osteen, alias Clinton Lewis, was indicted jointly with J. A. Pilcher and Luther C. Bone for the offense of robbery by force and intimidation of W. T. Pittman of his 38 caliber Smith & Wesson pistol. Osteen was tried separately and was convicted of robbery by intimidation with his penalty fixed at from two to seven years in the penitentiary. His motion for a new trial, based upon the usual general grounds and one special ground, was overruled and he excepted.
Grady Gillon, Frank G. Wilson, and W. O. Cooper, Jr., all of Macon, for plaintiff in error.
Chas. H. Garrett, Sol. Gen., Macon, for defendant in error.
1. It appears that it is the contention of the State that the prosecutor, W. T. Pittman, who is a policeman of the City of Macon, was robbed of his pistol during the time that the defendant, Osteen, was engaged, with J. A. Pilcher and Luther C. Bone, in burglarizing the place of business of E. L. Kennedy in Macon. For the offense of burglary, the defendant was indicted with J. A. Pilcher and Luther C. Bone, and he has been tried and convicted of that offense. See Osteen v. State, Ga.App., 63 S.E.2d 416.
The defendant contends, in his argument of the general grounds, that the verdict is not supported by the evidence since the identification of the defendant as one of those who participated in the alleged offense did not show his participation to a moral and reasonable certainty and beyond a reasonable doubt; and he contends further that even if the identification of the defendant be held to be sufficient there was no proof of robbery.
The defendant was positively identified as one of three men who visited the Kennedy store-pool room on the evening preceding the morning on which it was burglarized. The was positively identified by one of the police officers who went to the store-pool room to investigate the burglary as being one of the burglars. He was positively identified by another witness as the man seen leaving the store-pool room at the time of the burglary. This was sufficient to authorize the jury to find that the defendant was present and participating in a burglary at the time and place of the alleged robbery charged in the present case. The evidence was also sufficient to establish the crime of robbery of the pistol. It appears that after the two officers entered the store to investigate, they found two men therein. Both men carried guns and taking the officers by surprise, ordered the officers at gun point to throw down their guns and the officers were ordered to stand facing one of the walls of the store while the two men effected their escape, and though the officers both testified that the two men did not relieve them of their valuables, Officer Cranford testified that he saw one of them--not the defendant--reach down and pick up Officer Pittman's gun after he had thrown it upon the floor. The pistol has never been recovered. The requisite circumstances of inimidation were certainly present. The officers' actions in disposing of their guns were performed upon orders from the two burglars who held their guns on the officers. The taking of the pistol by the defendant's accomplice was sufficient to authorize the jury to find that there was an intent to steal which was chargeable to this defendant, as he was present aiding and abetting the other man who, it is testified, picked up the gun. The intent to steal is inferable from the taking of the pistol, and carrying it away from whence it had been thrown by the officer. The verdict finding the defendant guilty of robbery by intimidation was authorized by the evidence.
2. In the only special ground of the motion for a new trial ...
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...corrective measures are taken and there is no abuse of that discretion, the refusal to grant a mistrial is not error. Osteen v. State, 83 Ga.App. 378, 381, 63 S.E.2d 692. See Burce v. State, 146 Ga.App. 383, 384, 246 S.E.2d 412; Clyatt v. State, 126 Ga.App. 779, 786, 192 S.E.2d 417. We find......
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