Young v. State

• Citation: 226 Ga. 553,176 S.E.2d 52
• Decision Date: 09 July 1970
• Docket Number: No. 25833,25833
• Parties: Jerome YOUNG v. The STATE.
• Court: Supreme Court of Georgia

Page 52

176 S.E.2d 52

226 Ga. 553

Jerome YOUNG v. The STATE.

No. 25833.

Supreme Court of Georgia.

July 9, 1970.

Syllabus by the Court

1. There is no merit in the contention that the indictment was vague and indefinite because the defendant was charged with committing the robbery, conjunctively, by the use of a pistol, and by the use of a replica of a pistol.

2. The indictment was not defective in not charging that the money was taken without the consent of the corporate owner, where it charged that the money was taken without the consent of the corporation's agent.

3. The evidence authorized the verdict, and it was not error to overrule the general grounds of the motion for new trial.

4. There was no error in declining to grant a mistrial because of the testimony of a witness, not responsive to the question of the prosecuting attorney, which the trial judge withdrew from the jury and instructed them to disregard.

5. There was no error in failing to give requested instructions, where the principles were fully covered by the charge given.

6. It was not error to fail to charge that the burden is on the prosecution to introduce the best evidence which exists of the fact sought to be proved unless its absence is satisfactorily accounted for, as this is a rule applicable to the admission of evidence and not to the proof required to convict one charged with a criminal offense.

7. There is no requirement of our law that a trial judge warn the jury against the possible danger of mistaken identification of an accused, and it was not error to refuse to give requested instructions on this subject.

8. The defendant's race or color was not a proper matter for comment by the trial judge, and there is no merit in the contention that the judge should have given a requested instruction referring to his color.

9. The trial court did not err in denying the motion for new trial, as amended.

William W. Daniel, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Tony H. Hight, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Dorothy T. Beasley, Asst. Attys. Gen., Atlanta, for appellee.

MOBLEY, Presiding Justice.

Jerome Young was convicted of robbery by the use of an offensive weapon and given a sentence of life imprisonment. His motion for new trial, as amended, was denied. He appealed from the judgment of conviction and sentence, and enumerated as error the denial of his motion for new trial, as amended, the overruling of his general and special demurrers to the indictment, the overruling of several grounds of his motion for new trial, and the failure to give a requested charge.

1. The general and special demurrers to the indictment were based on the same contentions. The first contention is that the indictment is vague and indefinite because it is not clear whether the defendant is charged with robbery by the use of a pistol, or with robbery by the use of 'an article, replica and device having the appearance of a pistol.'

Counsel for the defendant relies on the case of Isom v. State, 71 Ga.App. 803, 32 S.E.2d 437, in which the Court of Appeals held that an alternative charge as to the instrument used by the accused made an indictment charging him with assault with intent to murder subject to special demurrer.

The present indictment charged the defendant with committing the robbery with a pistol, and with a replica of a pistol, conjunctively, and not disjunctively, and the rule in the Isom case, supra, is not applicable here.

In Henderson v. State, 113 Ga. 1148, 39 S.E. 446, where an alternative charge in an accusation was held to be subject to special demurrer, this court stated (p. 1149, 39 S.E. p. 447): 'The charge as to the weapon might have been cumulative, naming various weapons, and the proof of any one would have supported the allegation; * * *.' In 42 C.J.S. Indictments and Informations § 101, p. 984, it is stated: 'As a general rule, where a statute specifies several means or ways in which an offense may be committed in the alternative, it is bad pleading to allege such means or ways in the alternative; the proper way is to connect the various allegations in the accusing pleading with the conjunctive term 'and' and not with the word 'or."

The indictment in the present case charged the defendant with committing robbery in two ways specified by the statute in existence at the time of the commission of the crime, and it is not subject to special demurrer on the ground of being vague and indefinite.

2. The second ground of demurrer to the indictment is that it fails to charge the defendant with the crime of robbery in that it is not alleged that the money was taken without the consent of the owner, Regal Enterprises, Inc. The indictment charged that the defendant took from the person of Shed Harris, 'without his consent and with intent to steal the same, * * * money of the value of $2,699 and the property of Regal Enterprises, Inc. * * *'

'In an indictment for robbery, ownership of the property taken may be laid in the person having actual lawful possession of it, although he may be holding it merely as the agent of another; and it is not necessary to set forth in the indictment the fact that the person in whom the ownership is laid is holding it merely as agent of the real owner.' Spurlin v. State, 222 Ga. 179(7), 149 S.E.2d 315. The indictment in the present case alleged more than was required in stating that the ownership of the money was in the corporation. It charged that the money was taken without the consent of the agent of the corporation having custody of the money, and this was sufficient to charge that the money was taken without the consent of the owner.

3. There was no error in overruling the general grounds of the motion for new trial. The crime charged was the robbery of a liquor store. Two employees were present when the crime was committed by two Negro males. Both employees identified the defendant as being one of those participating in the robbery, and the jury was authorized to believe this testimony in preference to the evidence for the defendant that he was not the person committing the crime.

Counsel for the defendant argues that the money was taken from a locked room in the store, to which the employees had no key, and that the evidence failed to show that the money taken was in the possession or control of Mr. Harris as charged in the indictment. The evidence...