Roberts v. State, 34064
| Decision Date | 30 November 1978 |
| Docket Number | No. 34064,34064 |
| Citation | 250 S.E.2d 482,242 Ga. 634 |
| Parties | ROBERTS v. The STATE. |
| Court | Georgia Supreme Court |
A. Glen Steedley, Jr., Atlanta, for appellant.
Arthur K. Bolton, Atty. Gen., Don A. Langham, First Asst. Atty. Gen., John C. Walden, Senior Asst. Atty. Gen., Nicholas G. Dumich, Sp. Asst. Atty. Gen., Lewis R. Slaton, Dist. Atty., R. David Petersen, A. Thomas Jones, Joseph J. Drolet, Asst. Dist. Attys., for appellee.
Appellant and two companions entered a convenience store for the purpose of committing an armed robbery. After the trio temporarily posed as customers, appellant approached the check-out counter, pulled a pistol and said, "This is a hold-up." Before the trio could obtain any money from the cash register or from customers, one of appellant's companions shot and killed a customer because he believed the customer was trying to telephone the police. Appellant's primary contention at trial was that he had abandoned any conspiracy to commit the offense of armed robbery prior to the time his companion shot the customer.
1. Appellant first contends that the trial court erred in allowing into evidence the testimony of a witness identifying appellant as the man who had robbed her in the store at gunpoint four days prior to the offense for which the appellant was found guilty in this case. The state contends that the testimony was admissible under an exception to Code Ann. § 38-202, which section generally excludes testimony as to the general character of the defendant. There are many exceptions to the general rule. See Thomas v. State, 239 Ga. 734, 736-737, 238 S.E.2d 888 (1977). The state contends that the testimony is admissible to show intent, motive, plan, scheme, and bent of mind of the appellant. This court agrees. Davis v. State, 233 Ga. 638, 639(2), 212 S.E.2d 814 (1975).
Furthermore, the admission of this testimony was harmless and will not affect the validity of the trial court's judgment because the evidence against the appellant is overwhelming and establishes that he did not withdraw his agreement or abandon his plan in sufficient time or manner to absolve himself from the consequences of the actions of his companions. Hamilton v. State, 239 Ga. 72, 76, 235 S.E.2d 515 (1977). McClung v. State, 206 Ga. 421, 424, 57 S.E.2d 559, 561 (1950). This enumeration of error is without merit.
2. Appellant contends that under the facts of this case the trial court should have charged the jury on conspiracy and on attempted armed robbery as lesser included offenses to the crime of murder. "It is manifest from a reading of (Chapter 26-32) of the Criminal Code of Georgia that it was the intent of the legislature to make conspiracy itself a separate crime only in cases where the crime conspired to be committed had not in fact been committed, that is, where the conspiracy had been, so to speak, 'nipped in the bud.' " Crosby v. State, 232 Ga. 599, 601, 207 S.E.2d 515, 518 (1974). This court need not decide whether or not conspiracy to commit armed robbery is a lesser included offense to malice murder because the evidence establishes without dispute that the crime charged malice murder actually was committed; hence, if the conspiracy was a lesser included offense, it merged into the greater offense, and it was not, therefore, error to decline to charge on...
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Gilreath v. State
...the trial court's instructions were curative and the court did not abuse its discretion in denying the motion. Roberts v. State, 242 Ga. 634(4), 250 S.E.2d 482 (1978); Patterson v. State, 239 Ga. 409(2), 238 S.E.2d 2 13. Defendant contends that the trial court erred in refusing to give five......
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Hanvey v. State, 75135
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