Smith v. State, 55906

• Decision Date: 27 June 1978
• Docket Number: No. 55906,55906
• Citation: 146 Ga.App. 444,246 S.E.2d 454
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 454

246 S.E.2d 454

146 Ga.App. 444

SMITH v. The STATE.

No. 55906.

Court of Appeals of Georgia.

Submitted May 22, 1978.

Decided June 27, 1978.

Williams & Starling, Donald A. Starling, Douglas, for appellant.

Dewey Hayes, Dist. Atty., for appellee.

BIRDSONG, Judge.

Rickey Smith appeals his conviction of armed robbery and aggravated assault. The evidence shows that Smith and two others entered a small rural store and conducted themselves in such a way that the proprietor was afraid she was going to be robbed. A customer entered the store before anything occurred and the three men left. A short while later, the same three men entered another small rural store and robbed the proprietor of slightly more than $100. The victim identified Smith as one of the robbers. The jury was warranted in concluding that after the cash register had been rifled, the robbers struck the victim in the head with a glass bottle and the pistol that was used to carry out the robbery. Reading the record together with the transcript, it reasonably appears that the proprietor of the first store entered, gave a description of the three persons who had acted suspiciously in her store. This description led investigating officers to Smith's companions. The officers were able to establish that Smith was related to the co-accused, resembled the composite of one of the persons in the first store and was shown to be present with the co-accused on the day of the incident, who apparently were identified as being part of the trio of robbers. This, plus information from tips in the community caused the officers to arrest Smith. After his arrest, Smith was given his Miranda rights and gave a statement implicating himself in the robbery. Smith enumerates five alleged errors, the fifth concerning a denial of a new trial based upon the first four enumerations of error. Held :

1. In the first enumeration of error, Smith complains that the trial court erred in failing to suppress the confession because the confession followed an illegal arrest and secondly because the confession was the product of coercion and a promise of leniency. We have no hesitance in concluding that the record and transcript in this case indicate probable cause for the arrest of the appellant. Moore v. State, 128 Ga.App. 20, 195 S.E.2d 275. Though there was a conflict in the evidence as to whether threats were used, whether there was a promise of reward for the statement, and whether appellant understood his rights, these issues were fully explored in the Jackson-Denno hearing. The trial judge's determination of voluntariness and admissibility, although based upon conflicting evidence, was supported by a preponderance of the evidence as required by High v. State, 233 Ga. 153, 210 S.E.2d 673 and was not error. Phillips v. State, 238 Ga. 497, 498, 233 S.E.2d 758. The first enumeration of error is without merit.

2. In the second enumeration of error, appellant complains that the court erred in denying a motion for new trial. This alleged error occurred when the proprietor of the first store was allowed to testify that she believed the three men who entered her store were bent on robbing her. The trial court excluded the testimony and instructed the jury to disregard it. While we are inclined to believe that this testimony may have been admissible to show plan, or motive...