Haynes v. State

288 S.E.2d 185, 249 Ga. 119, 1982 Ga. LEXIS 1118

• Court: Supreme Court of Georgia
• Decided: January 5, 1982
• Docket: 37825
• Status: Published

Opinions

Per curiam.

We granted certiorari to review the Court of Appeals’ opinion in this case. 159 Ga. App. 34 (283 SE2d 25) (1981).

1. The Court of Appeals held in Division 1 that “asportation” of the victim, necessary for conviction of kidnapping, was sufficiently shown by the evidence that the appellant, armed with a handgun, forced the victim to walk from her desk about 25 feet to the office of the hotel manager, to whom he made his demand for $20,000, and that he held the victim there against her will for 20 hours. Although we believe that specific legislation, amending Code Ann. § 26-1308, should be enacted penalizing the holding of hostages for ransom to eliminate the hair-splitting decisions as to what is sufficient asportation, nevertheless, we agree with the Court of Appeals’ holding that it was sufficient here, citing Brown v. State, 132 Ga. App. 399 (2) (208 SE2d 183) (1974).

2. The Court of Appeals held in Division 2 that, although the facts established regarding the kidnapping for ransom and the armed robbery are “overlapping to some extent and closely related,” they found no merger, citing for comparison Butler v. State, 239 Ga. 591 (3) (238 SE2d 387) (1977); Thomas v. State, 237 Ga. 690 (III) (229 SE2d 458) (1976).

In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime, within the meaning of Code Ann. § 26-505 (a), “[State v.] Estevez [232 Ga. 316 (206 SE2d 475) (1974)], and a line of cases following it (Allen v. State, 233 Ga. 200 (3) (210 SE2d 680) (1974); Burke v. State, 234 Ga. 512 (2) (216 SE2d 812) (1975); Zilinmon v. State, 234 Ga. 535 (8) (216 SE2d 830) (1975); Williams v. State, 238 Ga. 244 (7)(232 SE2d 238) (1977); Pryor v. State, 238 Ga. 698 (1) (234 SE2d 918) (1977)), look to the actual evidence introduced at trial. These cases hold, in effect, that if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under Code Ann. § 26-505 (a).” Stephens v. Hopper, 241 Ga. 596, 605 (247 SE2d 92) (1978) (Marshall, J., concurring).

In the present case, the state’s evidence, showing that the appellant demanded money for the release of Ms. Craig, was used to show (1) that there was a demand for ransom on the kidnapping count and (2) an intent to take another’s property on the armed-robbery count. The presence of the pistol was used to show (1) that Ms. Craig was being held against her will on the kidnapping count and (2) the use of an offensive weapon on the armed-robbery count. Finally, the money transferred was used to prove (1) that Ms. Craig was held for ransom on the kidnapping count and (2) that another’s property was taken from him on the armed-robbery count. Accordingly, the evidence used to establish one crime established the other, with the exception of the additional element of asportation in kidnapping for ransom. “ [A] felony may merge into another felony which requires an additional element or a more culpable mental state or a more serious injury or risk of injury to the same person, property, or public interest.” Pryor v. State, 238 Ga. 698, supra, p. 701. We therefore hold that, under the facts of this case, the crime of armed robbery was a lesser included offense in the crime of kidnapping for ransom and that the two crimes merged, so that the conviction and sentence for armed robbery must be set aside.

Decided January 5, 1982 Rehearing denied March 8, 1982. Lawrence Lee Washburn III, for appellant. Lewis R. Slaton, District Attorney, Margaret V. Lines, Assistant District Attorney, for appellee.

3. The remaining rulings of the Court of Appeals were correct.

Accordingly, the judgment of the Court of Appeals is affirmed with the exception of the ruling in Division 2, which is reversed with direction to remand the case to the trial court to have the conviction and sentence for armed robbery expunged from the appellant’s record.

Judgment affirmed in peat; reversed in part, and remanded with direction.

All the Justices concur, except Hill, P. J., who concurs in the judgment only, and Marshall, J., who dissents.