Rolland v. State
| Decision Date | 06 January 1976 |
| Docket Number | No. 30450,30450 |
| Citation | 235 Ga. 808,221 S.E.2d 582 |
| Parties | Miller ROLLAND, Jr. v. The STATE. |
| Court | Georgia Supreme Court |
A. Glen Steedly, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Julius C. Daugherty, Jr., Staff Asst. Atty. Gen., Atlanta, for appellee.
Appellant was indicted, tried before a jury and convicted in Fulton Superior Court of two offenses: (1) the armed robbery of Charlie Walter Scott, by the use of a pistol, of 89 cents worth of gasoline; and (2) possessing the pistol without a license. He received a sentence of 20 years for the armed robbery and a concurrent sentence of 12 months for the misdemeanor pistol conviction. His motion for a new trial was overruled by the trial court and he appeals to this court.
Three questions are presented for decision. The first is whether the trial court erred in failing to charge without request on the law of attempted armed robbery. The second is whether the trial court erred in refusing to permit appellant's counsel to argue to the jury the credibility of the State's principal witness by commenting on the prior conviction of the witness for the offense of bastardy. Finally, appellant urges he should have been granted a directed verdict of acquittal in the trial court. We find no basis for reversal of the trial court's judgment.
Briefly stated, the evidence indicates appellant and a companion drove into a service station attended by Charlie Walter Scott in Fulton County. Appellant got out of the car on the passenger side after his companion, who was driving, asked for $1.00 worth of gas. Scott, the station attendant, testified that while he was pumping the gas, appellant approached him with a pistol covered by a stocking cap and directed that he walk to the station bathroom. Scott told appellant he did not have any money and, as they talked, two customers drove into the station. Appellant then got back into the car with his companion and they drove off without paying for the gas. Scott called the police and the suspects were apprehended a few minutes later by police officers. Scott also testified he would have collected for the gas if appellant had not pulled the gun on him and tried to rob him, but that he was never paid for the gas.
Appellant was the only witness for his defense. He admitted having the pistol and that he did not have a license for it. However, he denied robbing Scott and testified that Scott told him he had wanted to buy a pistol and that he was trying to sell this pistol to Scott. However, they got into an argument about another matter and Scott refused to buy the gun. Appellant then testified that he told Scott, 'Since you ain't going to do it, I ain't going to pay for this gas and he said you didn't order the gas no way, the man, the driver ordered the gas and I said I'm the one that told him and we got in the car, we turned around and we drove off.'
Appellant's testimony at trial was basically the same version of the incident he had given earlier in a written statement to the police officers which was admitted into evidence as State's Exhibit No. 3. During the course of the trial, the station attendant, Scott, was asked on cross examination by defense counsel about an accusation which charged him with the offense of bastardy. It was never offered into evidence, but the witness did admit he had entered a plea of guilty to an offense of bastardy in 1967. The trial court refused to allow defense counsel to argue the bastardy offense to the jury in an effort to impeach the credibility of the witness' testimony.
We consider first appellant's contention that the trial judge was required to charge the jury without request the law of attempted armed robbery. The jury was instructed on armed robbery and on theft by taking but not on the attempt to commit either crime. Code Ann. § 26-1001 provides that a person commits criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. The indictment charges appellant committed this armed robbery by taking 89 cents worth of gas from the station attendant through the use of a pistol. Appellant denied using the pistol to take the gasoline, but admitted the theft of the gasoline. The station attendant testified appellant confronted him with the pistol but was apparently frightened away by the arrival of other customers and took only the gasoline without paying for it.
Thus if the jury believed the attendant's version of the confrontation, appellant may have intended to take not only the gasoline but also money or something else of value from the attendant. In fact, appellant took only the gasoline.
Under this indictment and the facts of this case, we do not believe that attempted armed robbery was in issue. Appellant admitted the gasoline theft and the only disputed question the jury had to resolve was whether the gasoline was stolen by the use of the pistol or whether it was not. If the admitted theft of the gasoline was accomplished by the use of the pistol, this would constitute the completed crime of armed robbery. If the pistol was not used to take the gasoline, then appellant, by his own admission, was guilty of the offense of theft by taking, but nothing else. The fact that appellant may also have intended to take additional items of value from the attendant but failed to do so would not reduce the completed crime of armed robbery to an attempt to commit armed robbery, nor would there have been more than one armed robbery if he had been successful in taking other items. See, e.g., Creecy v. State, 235 Ga. 542, 221 S.E.2d 17 (1975).
Thus, under the victim's testimony, appellant was guilty of armed robbery while under appellant's testimony there was no armed robbery but there was a theft by taking of the gasoline. The evidence offered the jury a choice of one of two completed crimes or of no crime at all. See Watson v. State, 235 Ga. 461, 219 S.E.2d 763 (1975). As there was no evidence requiring a charge on attempt to...
To continue reading
Request your trial
-
Roberts v. State
...of the record of the court in which he was convicted.' Rewis v. State, 109 Ga.App. 83, 85, 134 S.E.2d 875 (1964)." Rolland v. State, 235 Ga. 808, 811, 221 S.E.2d 582 (1976). We note that the defendant was later able to prove in a proper manner that the (l) In his twenty-first ground, the de......
-
Cook v. State, 42661
...they were on probation. Cook argues that certified copies of their convictions should have been introduced. See Rolland v. State, 235 Ga. 808, 811, 221 S.E.2d 582 (1976). However, Cook has not shown that either of these two witnesses had been convicted of a felony or of a misdemeanor involv......
-
Harwell v. State
...Roberts v. State, 267 Ga. 669(2), 482 S.E.2d 245 (1997); Clarke v. State, 239 Ga. 42(3), 235 S.E.2d 524 (1977); Rolland v. State, 235 Ga. 808, 811, 221 S.E.2d 582 (1976); Daniels v. State, 234 Ga. 523(4), 216 S.E.2d 819 (1975); Adams v. State, 229 Ga.App. 381(2), 494 S.E.2d 92 (1997), where......
-
Paxton v. State
...a verdict of not guilty that it is error for the trial court to refuse a motion for a directed verdict of acquittal." Rolland v. State, 235 Ga. 808, 812, 221 S.E.2d 582. That statement applies to the case at bar. There would have to be a complete lack of evidence of the existence of a real ......
-
Evidence - Marc T. Treadwell
...Id. at 148, 650 S.E.2d at 728. 155. Id. at 147, 650 S.E.2d at 727. 156. Id. 157. Id. at 146, 650 S.E.2d at 726 (quoting Rolland v. State, 235 Ga. 808, 811, 221 S.E.2d 582, 585 (1976)). 158. Id. at 147, 650 S.E.2d at 727. 159. See Smith v. State, 276 Ga. 263, 577 S.E.2d 548 (2003); see also ......