Welch v. State, 30241
| Decision Date | 23 September 1975 |
| Docket Number | No. 30241,30241 |
| Citation | 219 S.E.2d 151,235 Ga. 243 |
| Parties | Gordon DeLeon WELCH, Jr. v. The STATE. |
| Court | Georgia Supreme Court |
Wynn Pelham, Lawrenceville, for appellant.
Bryant Huff, Dist. Atty., Dawson Jackson, Asst. Dist. Atty., Lawrenceville, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.
On the evening of December 9, 1974, the Bay Service Station on Highway 23 in Gwinnett County was being operated by George West, manager, when West was approached by a stranger giving the name Joe Downs, who engaged West in a series of acts and conversations. Shortly after Downs' apparent departure, West noticed a man standing by a gas pump with a shotgun, wearing a ski mask and overcoat. This man threatened West and forced him to empty his pockets, thus producing a key to the cash drawer. He then ordered West to unlock the cash drawer, and subsequently forced West to drive West's automobile away from the station, with the armed man in the back seat. During these transactions, the Joe Downs figure drifted into and out of the arena of events, sometimes being ordered about by the armed man as if he were also a victim and sometimes disappearing from the scene apparently without the armed man's notice. Some distance down the road, approximately three-tenths of one mile, the armed man demanded from West the money from the cash drawer and was told that after unlocking the drawer West had left at the armed man's bidding and had not brought the money. The armed man was chagrined; West was nervous; the car ended up in the ditch and West escaped, running back to the station and the unlocked cash drawer from which somewhat more than $200 had by then disappeared. West had been gone approximately 15 minutes.
Appellant Welch was not the armed man but was the confessed driver of the getaway car, parked some distance away. He later told police that he waited there while two male companions, with whom he had planned the robbery of the station, went to perform the robbery. When the two of them came running back they thrust at him the ski mask, overcoat and shotgun, and told him to go bury them. When he left the automobile to do this, the other two drove off and left him, and he returned to the most convenient telephone which happened to be at the Bay Service Station. A policeman, investigating upon West's call, asked Welch to emerge from the booth and then asked if he could 'help' him in any way, whereupon Welch blurted out a reference to the robbery and offered to lead officers to the shotgun. The officer then arrested Welch for armed robbery, and read to him the full Miranda warnings. Subsequently, Welch led officers to the mask, coat, and shotgun, and signed a statement detailing his part in the events. After a jury trial at which he was tried separately Welch was sentenced to nine years for kidnapping and nine years, to be served consecutively, for armed robbery.
1. On his appeal, Welch's first two enumerations of error concern only his conviction for armed robbery of the money from the cash drawer. He argued the general grounds and additionally urges that his motion for directed verdict on the armed robbery count should have been granted. He argues that the state produced no direct evidence of the identity of the person who actually took the money and the circumstantial evidence that it was one of Welch's co-conspirators (thus making Welch criminally responsible under Code Ann. § 26-801) is not adequate to exclude every other reasonable hypothesis. He argues that a passerby, or West himself, or the 'Joe Downs' figure could have taken the money. We note that the record supports an inference that the man calling himself Joe Downs could have been the third conspirator. Since Welch admitted there were two others involved with him we think the jury were authorized to conclude that the third conspirator, who is otherwise unaccounted for, and who could have been Downs or another, took the money after West unlocked the drawer. See Merino v. State, 230 Ga. 604, 606, 198 S.E.2d 311. This circumstantial evidence meets the test of Code Ann. § 38-109, and this ground of the attack on the armed robbery conviction is without merit.
Welch's second argument against the armed robbery conviction is grounded in Code Ann. § 26-1902 stating that 'A person commits armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon.' (Emphasis added.) Welch argues that since West was absent from the station for 15 minutes during which time the money was taken, the state failed to make out a taking from his 'person' or 'immediate presence.'
One's 'immediate presence' in this context stretches fairly far, and robbery convictions are usually upheld even out of the physical presence of the victim if what was taken was under his control or his responsibility and if he was not too far distant. There is a surprising...
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