Simmons v. State, 57340
| Decision Date | 20 June 1979 |
| Docket Number | No. 57340,57340 |
| Citation | 149 Ga.App. 830,256 S.E.2d 79 |
| Parties | SIMMONS v. The STATE. |
| Court | Georgia Court of Appeals |
H. G. Bozeman, Dublin, for appellant.
B. B. Hayes, Dist. Atty., for appellee.
The defendant has appealed his conviction for armed robbery by use of an offensive weapon and aggravated assault with a deadly weapon. Held:
1. The indictment was returned during the July, 1977 term of the Laurens County Superior Court. During the same term defendant filed a demand for trial. Defendant was not tried during either the July or October term and both terms were terminated by operation of law. A jury was impaneled for the trial of criminal cases during the indictment term and the succeeding October term.
Defendant was tried during the January, 1978 term. Prior to trial his motion for acquittal under Code § 27-1901 was denied. The denial was correct. While Code § 27-1901 entitles one to an acquittal for the failure to bring him to trial within two terms, this Code section does not apply as defendant had been indicted for armed robbery, which by statute is still a capital felony. See Code § 26-1902; Turner v. State, 136 Ga.App. 42, 43, 220 S.E.2d 57. The provisions of Code § 27-1901.2 pertaining to "capital punishment" control this issue in this case. Code § 27-1901.2 provides that a defendant is entitled to be discharged after he makes a demand for trial and where no trial is had after more than two terms of court have been convened and adjourned "after the term at which the demand is filed . . ." Defendant contends that armed robbery is no longer a capital crime in Georgia and therefore, the non-capital provisions of Code § 27-1901 applies. The latter statute, if applicable under these facts, would have required his discharge. However, the armed robbery statute authorizes the death penalty as a punishment on conviction of that crime. Code § 26-1902.
The Supreme Court held in Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 that conviction for armed robbery standing alone will not authorize the incorporation of the death penalty. In Collins v. State, 239 Ga. 400, 236 S.E.2d 759, it was held that for Appellate jurisdictional purposes armed robbery was no longer a capital felony. Notwithstanding these decisions, armed robbery is still considered a capital offense under the aggravating circumstances provision of Code Ann. § 27-2534.1(b)(2). Peek v. State, 239 Ga. 422, 431, 238 S.E.2d 12. Applying the Peek holding here we similarly hold that armed robbery is a capital offense within the purview of Code § 27-1901.2.
2. The state, by its evidence established that on May 31, 1977, at approximately 12:35 p. m. the alleged victim of these crimes saw defendant at her office. Defendant left but returned in three or four minutes. He then struck the victim on her head with a beer bottle, took $25 out of her desk drawer, and fled. The victim suffered facial cuts and a "knot" on her head as a result of the blow with the beer bottle. Defendant's evidence consisted solely of evidence contained in an official record of the Laurens County Jail which reflected that he was incarcerated from 10:10 a. m. on March 21, 1977, until 2:25 p. m. on May 31, 1977. In rebuttal, the state showed by testimony of witnesses that defendant was taken from the Laurens County Jail prior to noon on May 31, 1977, for an appearance in another case; that defendant as a result of his court appearance was released and did not return to the jail; that defendant left an automobile in which he was riding at a point approximately four blocks from the scene of the robbery and assault. Another state witness testified in rebuttal that he informed a deputy sheriff at the county jail after 2 p. m. on May 31, 1977, of defendant's release from jail. The entry in the jail record that defendant was released at 2:25 p. m. was based on this report. This evidence authorized the conviction of both crimes charged. A beer bottle used in the manner shown would authorize a jury to find that it was both an offensive weapon and a deadly weapon. Pettiford v. State, 235 Ga. 622, 221 S.E.2d 43 and Quarles v. State, 130 Ga.App. 756, 204 S.E.2d 467.
The denial of his motion for directed verdict of acquittal was correct. Similarly, the court's charge to the jury on the elements of these crimes was likewise authorized and required and free of error.
3. The defendant made a written request for a charge on alibi and it was refused. A charge on alibi is warranted when there is evidence which reasonably excludes the possibility of the defendant's presence at the time of the commission of the offense. Code § 38-122. Defendant contended that a charge on this defense was warranted based on the evidence contained in the jail record that he was in jail at the time the offenses were committed and the testimony that he was four blocks away from the scene of the crime at 12:30 p. m. When the jail record and the four-block distance is considered with the state's rebuttal evidence in explanation, the evidence offered by appellant...
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