Tisdol v. State
| Decision Date | 18 June 1981 |
| Docket Number | No. 61638,61638 |
| Citation | 158 Ga.App. 852,282 S.E.2d 411 |
| Parties | TISDOL v. The STATE. |
| Court | Georgia Court of Appeals |
Ray Holland, Ashburn, Phillip N. Golub, Blackshear, for appellant.
Thomas H. Pittman, Dist. Atty., C. Paul Bowden, Asst. Dist. Atty., for appellee.
Appellant was tried by a jury and convicted of armed robbery. He appeals from the denial of his motion for new trial, as amended.
1. Appellant contends that the trial court erred in refusing to instruct the jury, upon proper written request, on the lesser included offense of theft by taking. The testimony of the prosecuting witness, a route salesman for a beer distributor, made out a case of armed robbery. He testified that after making a delivery to one of his customers and as he was preparing to leave, he was accosted by appellant's co-defendant, pulled from his truck at the point of a gun and robbed of his wallet. He further identified appellant as being present during the robbery and as the driver of the getaway car.
On the other hand, appellant denied that the set of events testified to by the alleged victim amount to an armed robbery. Rather, appellant testified that the entire episode was the result of a planned conspiracy whose membership consisted of appellant, appellant's co-defendant, and the victim. In the scenario depicted by appellant's testimony, the victim's motive in the purported conspiracy is described as being "because he needed money." In this connection, the money that was the subject of the crime whatever the crime might have been belonged not to the victim but to the victim's employer. Appellant testified that he and the co-defendant, in effect, attempted to back out of the planned scheme at the scene of the alleged robbery, that they refused to take the wallet when it was offered and that the victim finally threw the wallet into the front seat of the car and ordered appellant to "spin off" to "make it look like it's real." Appellant further testified that, in fact, he did "spin off" simply "because (the victim) asked me to." Also, the transcript reveals that appellant vehemently denied that either he or the co-defendant used a gun during the events giving rise to the charges alleged in the indictment.
Theft by taking, a lesser included offense of armed robbery, occurs when a person "unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of said property, regardless of the manner in which said property is taken or appropriated." Code Ann. § 26-1802. Assuming that the jury believed appellant's story with regard to the conspiracy and his testimony concerning the victim's throwing the wallet into the car, all three men (appellant, co-defendant and the victim) would be guilty of theft by taking in view of the fact that the money stolen belonged to the victim's employer. Since the money did not belong to the victim, the appellant's driving off with the wallet at the command of one who did not own the wallet does not, as a matter of law, show the absence of "any participation in a crime."
Therefore, we view the evidence and the possible constructions of the same by the jury under proper instructions to be as follows: (a) If the jury believed appellant's story in its entirety and determined that appellant was justified because of fear or otherwise in obeying the victim's command to "spin off," it would be authorized to acquit the appellant. (b) If the jury was persuaded to accept all of the victim's testimony it would be authorized to reach the verdict of guilty of armed robbery, which was the verdict returned. (c) If the jury believed every part of the victim's testimony except that relating to the use of the gun, the jury could convict the appellant of theft by taking. (d) If the jury believed appellant's story in its entirety but determined that appellant was not justified in driving off with the wallet containing the money of the victim's employer, it could conclude that appellant, co-defendant and the victim all plotted together to steal the money belonging to the victim's employer and that, therefore, all three were parties to the crime under Code Ann. § 26-801 and guilty of criminal conduct. Since under appellant's story, no gun was involved, the jury's adoption of this version of the concerned events could also result in the jury finding appellant guilty of the lesser included offense of theft by taking.
Since the evidence warranted a charge on the lesser included offense of theft by taking and appellant made a proper written request for such instruction, the refusal of the trial court do so charge requires the grant of a new trial. State v. Stonaker, 236 Ga. 1, 2, 222 S.E.2d 354 (1976); Prince v. State, 142 Ga.App. 734, 236 S.E.2d 918 (1977); Malone v. State, 142 Ga.App. 47, 234 S.E.2d 844 (1977); Hensley v. State, 228 Ga. 501(2), 186 S.E.2d 729 (1972).
2. Appellant urges that the trial court erred in overruling his motion to suppress as evidence certain shoes which appellant contends were illegally seized. The state contends that the shoes were properly seized and that they were properly admitted as evidence tending to prove the identity of one of the alleged robbers and to place appellant at the scene of the crime. Assuming without deciding that the trial court erred in denying appellant's motion to suppress, appellant admitted his presence at the crime scene and, thus, "any errors which may or may not have been committed concerning the admission of evidence which tended to place him at the scene of the crime were clearly harmless." Haney v. State, 226 Ga. 52(2), 172 S.E.2d 592 (1970).
3. Appellant complains of the admission into evidence of an incriminating statement made by him to one of the investigating officers, contending the statement was not freely and voluntarily elicited and made without a knowing and intelligent waiver of his constitutional rights. Prior to admitting the statement, the trial court held a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 hearing to determine its admissibility. While appellant testified that he signed the statement because of promises that he would be "let go" if he did so, the GBI agent involved testified that no promises at all were made to appellant, that appellant was not placed...
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