Choate v. State

Court of Appeals of Georgia

Choate v. State

279 S.E.2d 459, 158 Ga. App. 8, 1981 Ga. App. LEXIS 2049

CourtCourt of Appeals of Georgia

DecidedMarch 13, 1981

Docket61302

StatusPublished

Cited by16 cases

This text of 279 S.E.2d 459 (Choate v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Choate v. State, 279 S.E.2d 459, 158 Ga. App. 8, 1981 Ga. App. LEXIS 2049 (Ga. Ct. App. 1981).

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Opinions

Banke, Judge.

The appellant was convicted of armed robbery by use of an offensive weapon. The only issue presented on appeal is the trial court’s determination, and his charge to the jury, that a toy gun is an offensive weapon within the meaning of Code Ann. § 26-1902. Held:

It is uncontroverted that the robbery was committed with a toy cap pistol. The state introduced the cap pistol in evidence, along with evidence showing that it had been found in the appellant’s car shortly after the robbery. In pretrial statements to police, the appellant referred to the “toy gun” he had used in the robbery. The bank teller testified that the toy pistol introduced into evidence had the appearance of the one used in the robbery. There was no evidence which would have authorized a conclusion that the toy pistol, though not a firearm, nevertheless constituted a dangerous weapon because of the manner in which it was employed. The appellant was seated in her car when she pointed the pistol at the teller, and the teller was seated in an enclosed booth.

Both in its brief and in argument before this court, the state has asserted that the Supreme Court’s decision in Pettiford v. State, 235 Ga. 622 (221 SE2d 43) (1975), classified a toy pistol as an “offensive weapon” within the meaning of Code Ann. § 26-1902 and that our decision in Fann v. State, 153 Ga. App. 634 (266 SE2d 307) (1980) to the contrary is in conflict with this precedent. We cannot agree. In Pettiford the evidence showed that the appellant was also armed with a stick and that he struck the victim on the head with it. Additionally, although the appellant testified that the pistol he used in connection with the incident was only a cap pistol, the evidence did not demand such a conclusion, as it does here and as it did in Fann.

For the reasons set forth in Fann, supra, the appellant’s conviction for armed robbery is vacated. Since the evidence was adequate to support appellant’s conviction of robbery by intimidation, the case is remanded with direction that a conviction and sentence be entered for that offense.

Vacated and remanded.

Quillian, C. J., Birdsong and Sognier, JJ., concur. McMurray, P. J., Shulman, P. J., Carley and Pope, JJ., [9]*9 concur specially. Deen, P. J., dissents. Decided March 13, 1981 — Jerry F. Lee, for appellant. Johnnie Caldwell, Jr., District Attorney, J. David Fowler, Paschal A. English, Jr., Assistant District Attorneys, for appellee.

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Banke, Judge.

The appellant was convicted of armed robbery by use of an offensive weapon. The only issue presented on appeal is the trial court’s determination, and his charge to the jury, that a toy gun is an offensive weapon within the meaning of Code Ann. § 26-1902. Held:

It is uncontroverted that the robbery was committed with a toy cap pistol. The state introduced the cap pistol in evidence, along with evidence showing that it had been found in the appellant’s car shortly after the robbery. In pretrial statements to police, the appellant referred to the “toy gun” he had used in the robbery. The bank teller testified that the toy pistol introduced into evidence had the appearance of the one used in the robbery. There was no evidence which would have authorized a conclusion that the toy pistol, though not a firearm, nevertheless constituted a dangerous weapon because of the manner in which it was employed. The appellant was seated in her car when she pointed the pistol at the teller, and the teller was seated in an enclosed booth.

Both in its brief and in argument before this court, the state has asserted that the Supreme Court’s decision in Pettiford v. State, 235 Ga. 622 (221 SE2d 43) (1975), classified a toy pistol as an “offensive weapon” within the meaning of Code Ann. § 26-1902 and that our decision in Fann v. State, 153 Ga. App. 634 (266 SE2d 307) (1980) to the contrary is in conflict with this precedent. We cannot agree. In Pettiford the evidence showed that the appellant was also armed with a stick and that he struck the victim on the head with it. Additionally, although the appellant testified that the pistol he used in connection with the incident was only a cap pistol, the evidence did not demand such a conclusion, as it does here and as it did in Fann.

For the reasons set forth in Fann, supra, the appellant’s conviction for armed robbery is vacated. Since the evidence was adequate to support appellant’s conviction of robbery by intimidation, the case is remanded with direction that a conviction and sentence be entered for that offense.

Vacated and remanded.

Quillian, C. J., Birdsong and Sognier, JJ., concur. McMurray, P. J., Shulman, P. J., Carley and Pope, JJ., [9]*9 concur specially. Deen, P. J., dissents. Decided March 13, 1981 — Jerry F. Lee, for appellant. Johnnie Caldwell, Jr., District Attorney, J. David Fowler, Paschal A. English, Jr., Assistant District Attorneys, for appellee.

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279 S.E.2d 459, 158 Ga. App. 8, 1981 Ga. App. LEXIS 2049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/choate-v-state-gactapp-1981.

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