Thomas v. State

197 S.E.2d 452, 128 Ga. App. 538, 1973 Ga. App. LEXIS 1541

Opinions

Bell, Chief Judge.

Several of the enumerations of error go to the question as to the sufficiency of the evidence which authorized the defendant’s conviction of an attempt to commit armed robbery and the court’s charge to the jury on that offense. It is argued that since no force and violence was used prior to the attendant placing the gasoline in the tank of the vehicle that under our robbery statute the defendant cannot be convicted on an attempt to commit armed robbery. We disagree. Amended Code § 26-1902 defines armed robbery in part as follows: "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.” At the time the attendant pumped the gasoline into the tank, there was no taking of the property of another within the meaning of the statute. Once the defendant drew the weapon and shot the victim there was an attempt to unlawfully take the property of another, the gasoline, by the use of an offensive weapon. No other reasonable conclusion upon this state of facts can be reached. With respect to the question of the identity of the defendant, the circumstantial evidence is more than sufficient to show that he was a perpetrator of this attempted armed robbery. The mere fact that the victim was not sure or was not positive in this identification or the fact that he testified as to only one identification by photograph as opposed to the police officers’ testimony of others cannot cause a reversal in this case. It is to be remembered that other evidence shows that prior to the time of this crime defendant was seen in an automobile fitting the description of the one that appeared at the gasoline station, in possession of a pistol and wearing a black hat. After the crimes were committed he was observed wearing a black hat and he had a black hat when arrested. Additionally, the defendant admitted having possession of a gun shortly afterwards and a black hat. The conviction for attempted armed robbery was authorized and there was no error in the trial court’s charge on this offense.

Defendant complains of his conviction of the counts charging him with aggravated assault with a deadly weapon and carrying a pistol without a license. Amended Code § 26-506 (a) provides: "When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if (1) one crime is included in the other, ...” The crime of carrying a weapon without a license is not included within the crime of aggravated assault with a deadly weapon. While these offenses arose during one transaction, neither is included within the other, for they involve proof of distinct essential elements. The lesser crime, carrying a pistol without a license, has the element of lack of the issuance of a license by the ordinary. Amended Code § 26-2903. This element is not necessary to prove the greater crime of aggravated assault with a deadly weapon. The result in this case is even more demanded in view of the evidence that the defendant was in possession of the pistol before and after the commission of the robbery and aggravated assault. This enables one to clearly comprehend that the elements of the crimes were not identical and that they are separate and distinct ones, each of which separately or together will sustain a conviction.

Thus there was no error committed in charging the jury on both offenses; in failing to charge that defendant could not be convicted of both; or in sentencing the defendant on both offenses.

Defendant admitted having possession of a gun shortly after the alleged commission of this crime and in having a black hat. This part of his unsworn statement authorized the court’s charge on admissions and these admissions were related to all the offenses.

Several state witnesses were permitted to testify concerning out of court identification made by the victim during a police lineup and when a number of photographs were exhibited to him. This testimony was admissible. Montos v. State, 212 Ga. 764 (5, 6) (95 SE2d 792).

The victim testified that the police exhibited photographs to him which he referred to as "mug shots.” Objection was made on the grounds that this reference to the photographs as "mug shots” tended to place the defendant’s character in evidence as the term "mug shot” generally implies the picture of a criminal or suspected criminal. To this objection the court ruled that the witness would refer to the photographs as photographs rather than as "mug shots” but refused to instruct the jury to disregard the testimony terming the photographs as "mug shots.” This evidence did not place the defendant’s character in issue. See Cooper v. State, 182 Ga. 42 (2) (184 SE 716, 104 ALR 1309) and Martin v. State, 225 Ga. 234 (167 SE2d 638); Creamer v. State, 229 Ga. 704 (2) (194 SE2d 73).

Judgment affirmed.

Eberhardt, P. J., Pannell, Quillian, Evans, Clark and Stolz, JJ., concur. Hall, P. J., concurs in the judgment. Been, J., dissents.