Ponder v. State

• Decision Date: 22 May 1970
• Docket Number: No. 45133,No. 1,45133,1
• Citation: Ponder v. State, 175 S.E.2d 55, 121 Ga.App. 788 (Ga. App. 1970)
• Parties: Alphonso PONDER v. The STATE
• Court: Georgia Court of Appeals

Page 55

175 S.E.2d 55

121 Ga.App. 788

Alphonso PONDER v.The STATE.

No. 45133.

Court of Appeals of Georgia, Division No. 1.

May 22, 1970.

Syllabus by the Court

Essential elements of assault with intent to rob were omitted from the indictment which, at most, charged the defendant with a misdemeanor.Thus, the trial judge's action in imposing sentence for a felony was subject to a motion in arrest of judgment.

Alphonso Ponder was indicted for the offense of assault with intent to rob.The indictment charged on June 27, 1969, the defendant'with force and arms, and unlawfully, did then and there unlawfully and maliciously make an assault upon the person of Paul Renfroe and in a forceful and violent manner did throw his arms around the person of the said Paul Renfroe and did cut off the lights in the room in which Paul Renfroe was standing with the intent to commit a robbery upon the person of the said Paul Renfroe.'

The defendant was tried, found guilty and sentenced to serve four years.A motion for new trial and a motion in arrest of judgment were filed on behalf of the defendant.Both were overruled.Appeal was taken from these judgments and error is enumerated on the grounds: that the court erred in refusing to grant the motion in arrest for the reason that the indictment failed to allege an essential element of the crime charged, to wit, demand; that the court erred in refusing to grant a new trial because there was a fatal variance in the allegations contained in the indictment and the proof offered and that the verdict was contrary to law and without evidence to support it.

Hobart M. Hind, Albany, for appellant.

Robert W. Reynolds, Dist. Atty., Albany, for appellee.

QUILLIAN, Judge.

The defendant was charged with the commission of the offense on June 27, 1969.The new Criminal Code of Georgia, which was effective July 1, 1969, provides: 'The provisions of this Title do not apply to or govern the construction or punishment of any crime committed prior to the effective date of this Title * * *.Such a crime must be construed and punished according to the provisions of the law existing at the time of the commission thereof in the same manner as if this Title had not been enacted.'Code Ann. § 26-103(Ga.L.1968, pp. 1249, 1260).We, therefore apply in this situation the former criminal law, more specifically Code§ 26-1405.Our courts have held that assault with intent to rob under this section may be committed in three ways: '(1) By unlawfully and maliciously assaulting another with any offensive or dangerous weapon or instrument, with intent to commit robbery upon such person; (2) by menaces, demanding any money, goods, or chattels of or from any other person, with intent to commit robbery upon such person; and (3) by any forcible or violent manner demanding any money, goods, or chattels of or from another person, with intent to commit robbery upon such person.'Martin v. State, 77 Ga.App. 297, 300, 48 S.E.2d 485, 487.The indictment in the instant case did not charge the defendant with assault on another with any offensive or dangerous weapon or instrument; thus it was essential that a demand for money, goods...