Smith v. State
| Decision Date | 05 November 1971 |
| Docket Number | No. 29765,29765 |
| Citation | 228 Ga. 293,185 S.E.2d 381 |
| Parties | Norman Ray SMITH v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The evidence did not require charges on the law relating (a) to an attempt to commit a crime, or (b) to abandonment of effort to commit a crime.
2. The court correctly gave in charge Criminal Code § 26-1902 which defines
'armed robbery'; the evidence did not demand a charge on the lesser degrees of a crime.
3. We cannot say that the court acted unreasonably in taking the issue of sentence from the jury and fixing the sentence, after the jury had deliberated for 37 minutes without reaching agreement.
Edwin M. Saginar, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Carter Goode, Creighton W. Sossomon, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, William F. Bartee, Jr., Asst. Attys. Gen., Atlanta, for appellee.
This appeal is from a jury verdict finding the appellant guilty of the offenses of (a) armed robbery, (b) possessing a pistol without a license, and (c) carrying a concealed weapon; and, from an order denying appellant's motion for a new trial.
1. Grounds 1 and 2 of the enumeration of errors assert that the court erred in failing to charge the law relating to attempt to commit a criminal act, and abandonment of effort to commit a crime, as provided in Shapter 26-10 of the Criminal Code of Georgia (Ga.L.1968, p. 1249).
With respect to the armed robbery charge, the evidence shows the completion, not an attempt, of armed robbery. It was not error therefore to faile to charge the law relating to attempts. Haney v. State, 64 Ga.App. 396, 400, 13 S.E.2d 384.
There was no evidence to require a charge as to the abandonment of an effort to commit a crime.
2. Grounds of error Nos. 3, 4 and 5 allege that the court erred in (a) failing to charge the jury on theft as an essential element of the crime of armed robbery, as provided by § 26-1902 of the Criminal Code, (b) failing to charge the jury on intent as an essential element of the offense of armed robbery, and (c) failing to charge on the lesser offense being included in the greater offense.
The court gave in charge Criminal Code § 26-1902 which defines 'Armed robbery.' The evidence did not demand a charge on the lesser degrees of a crime.
3. After the jury had returned their verdict of guilty evidence of several prior felony convictions of the defendant was introduced. The jury was instructed by the court to retire and fix the sentence of the defendant.
Grounds of error 6 to 10...
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