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FINCHER v. THE STATE.
18673.
CANDLER, Justice.
Robbery by force. Before Judge Vaughn. Newton Superior Court. March 29, 1954.
1. Special ground 4 of the defendant's motion for new trial alleges that the judge erred in his charge to the jury by his failure to define the crime of robbery by force and violence, and by his omission to inform the jury that an intent to steal is a substantive element of that offense. In the circumstances of this case, there is no merit in this contention. The indictment charges this defendant and two others with the offense of robbery by force and violence; it contains the essential elements of the offense, including an allegation that the defendants took the property described therein from the person of the owner, without his consent and with an intent to steal it. The judge read the indictment to the jury and instructed them that each allegation contained therein was a material one, and that the State was required to prove all of them beyond a reasonable doubt before a conviction would be authorized. In the absence of a timely written request for a more specific definition of the offense charged and its essential elements, the instruction as given was sufficient. Sparks v. State, 209 Ga. 250 (71 S. E. 2d 608), and citations.
2. "To constitute robbery, it is unnecessary that the taking of the property should be directly from one's person; it is sufficient if it is taken while in his possession and immediate presence." Crawford v. State, 90 Ga. 701 (2) (17 S. E. 628, 35 Am. St. R. 242). In this case the jury was authorized to find from the evidence that some of the property alleged to have been stolen from Mr. Standard was actually taken from his person and some from his coat pocket while his coat was in his possession and immediate presence. In this connection, see Osborne v. State, 200 Ga. 763 (38 S. E. 2d 558), and the cases there cited.
3. As shown by our statement of the facts, Luther Hailey, who was jointly indicted with this defendant and Bobby Tuggle, gave an investigating officer a written statement concerning the offense with which they were jointly charged, in which he said that this defendant took a billfold containing $92 from Mr. Standard's pocket; but, as a witness for the State, he orally testified that his written statement was untrue and that he, by direction from this defendant, took it from Mr. Standard's coat pocket. On the trial, the State tendered Hailey's written statement in evidence, and it was objected to solely on the ground that Hailey had repudiated it by his oral testimony. Over this objection, it was admitted in evidence, and error is assigned on that ruling. As we view this special ground of the motion for new trial, it was not erroneous to admit the written statement over the objection made to its admission. Since the witness Hailey by his oral testimony repudiated his written statement, the repudiation would tend to impeach the witness (Code 38-1801), and such contradiction would of itself be beneficial to this defendant; and it is well settled that error without injury affords no reason for a reviewing court to reverse a judgment. Holcombe v. Jones, 197 Ga. 825 (3) (30 S. E. 2d 903), and citations.
4. Conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, the existence of which agreement may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose. In this case the jury was authorized to find by reasonable deductions from the acts and conduct of this defendant and his coindictees that they corruptly agreed with each other to do the unlawful act for which they were jointly indicted; and that, while acting together, each aiding and abetting the other, they accomplished their unlawful purpose. See, in this connection, Chappell v. State, 209 Ga. 701 (75 S. E. 2d 417), and citations.
5. This defendant and his coindictee Tuggle did not elect to sever and they were tried together. In his instructions to the jury, the judge correctly charged Code 26-2502, which prescribes the punishment for robbery by force and violence. He also charged the indeterminate-sentence law of 1919 (Ga. L. 1919, p. 387; Code 27-2502); but he did not instruct the jury that they had a right to fix a different degree of punishment for each of the defendants, and it is alleged in the amendment to the motion for new trial that he erred in failing to do so, though there was no written request for an instruction to that effect. This omission from the charge does not require a reversal of the judgment refusing a net trial. If this defendant desired a charge on punishment more specific than the one given, it should have been properly and timely requested. See, in this connection, Welborn v. State, 116 Ga. 522, 524 (42 S. E. 773), and McDaniel v. State, 74 Ga. App. 5 (38 S. E. 2d 697). Compare Thompson v. State, 160 Ga. 520 (5) (128 S. E. 756), where it was held that the trial judge erred in charging the jury that all of the defendants should receive equal punishment if the evidence authorized their conviction.
6. Since the evidence authorized the verdict and no error of law appears, it necessarily follows that the judge did not err, as contended, in refusing to grant this defendant a new trial.
Charles Fincher, Bobby Tuggle, and Luther Hailey were jointly indicted in Newton County for robbery by force and violence. The indictment alleges that they unlawfully, wrongfully, fraudulently, and by force and violence took from the person of Hubert Standard, without his consent and with intent to steal the same, one hundred dollars in lawful money and a wrist watch having a value of $125. Hailey pleaded guilty. Fincher and Tuggle were tried together, convicted of the offense charged, and the verdict fixed their punishment at not less than 15 nor more than 20 years in the penitentiary. Separate motions for new trial were made by them on the usual general grounds, and each amended his motion by adding several special grounds. Their motions as amended were denied, and they sued out separate writs of error to this court. The State's evidence and Fincher's and Tuggle's statements to the jury were in substance as follows:
Hubert Standard, the party alleged to have been robbed, testified that he was nearly 72 years old. He operated a small store. When leaving his store at the close of business on the day of the robbery, he had a billfold in his hip-pocket containing $110. He also had in his pocket $15 or $20 in currency and some change, including six silver dollars. About 6:30 p. m. on the day of the robbery he and another person together drank a quart of beer. He then went to a place in Newton County operated by the defendant Bobby Tuggle, arriving there about 8:30 at night. Before entering Tuggle's place, a boy whom he did not know offered him a drink of whisky, which he first declined but later took. It was the first drink of whisky he had taken in eleven years. Soon after entering Tuggle's place, he became "trembly" and passed out completely. He did not thereafter know anything until the following Tuesday afternoon, when he woke up in the hospital. All of his money and his wrist watch had been taken from him after he reached Tuggle's place on Sunday night.
After reciting the facts relating to his medical education, Dr. J. B. Mitchell further testified that Hubert Standard was brought to his hospital at Porterdale about 9:30 a. m. on December 14, 1953, and was then examined and treated by the witness. He was unconscious at that time and very cold, so much so that no available thermometer would register any body temperature. He remained unconscious for about 48 hours. Several severe bruises and cuts were found on his head and body, which appeared to have been inflicted by brass knucks. The injuries which he found on the head and body of Mr. Standard could not, in his opinion, have been inflicted from a fall; but were the result of a rather severe beating, and there were also skin abrasions indicating that he had been dragged. He described at considerable length the number of cuts and bruises which he found on the head and body of Mr. Standard, many of which were severe in nature. Mr. Standard stayed in the hospital five days, and his wounds had not completely healed when he left.
Luther Hailey, who was jointly indicted with Fincher and Tuggle, testified that he was only 18 years old; that Bobby Tuggle ran a place in Newton County where they had a juke box, danced and could eat; but on the night of December 13, when Mr. Standard is alleged to have been robbed, he saw a girl by the name of Betty Lane there. He was drinking that Sunday night and got his whisky at Tuggle's place. Mr. Standard arrived there soon after dark and was drunk and had some whisky with him, a small amount in a pint fruit jar; and he, Standard, Tuggle, and Fincher drank some of it. Later a poker game was suggested and all the men present, except himself, participated in the game. After the game had been in progress for a short time, he was asked to put a coin in the juke box. At that time and for no reason known to him, Mr. Standard slapped him. Immediately afterwards Bobby Tuggle slapped Mr. Standard down and dragged him out into the yard. There Tuggle repeatedly struck and beat Mr. Standard with his fists and with a navy coat which Mr. Standard had with him. Later Tuggle threw Mr. Standard's coat out into the yard near the place where he was lying. By direction from Charles Fincher, he (the witness) got Mr. Standard's billfold, which contained only $92, out of his pocket and gave the money to Fincher and threw his billfold containing some papers across the road. It was a cold, rainy night and Mr. Standard, who was severely injured from the blows inflicted upon him, was unable to leave, and lay in the yard until early the next morning when he was carried back into Tuggle's place. Mr. Standard's son later came to Tuggle's place, procured an ambulance, and Mr. Standard was carried to the hospital in an unconscious condition. During the early hours of the morning, after Mr. Standard had been beaten during the night, Fincher gave Mr. Standard's wrist watch to him, and he gave it to Tuggle, and Tuggle then said that it belonged to some boy who was supposed to come back and pick it up that day. The band on the watch had been broken. Fincher gave Tuggle four silver dollars, and they were on the bed in which Tuggle and Fincher had slept when he left, but he did not know where Fincher got them. He also saw Fincher give Tuggle a pair of bloody brass knucks on the morning after the robbery, and Betty Lane put them in her cedar chest. He, Fincher and Tuggle were arrested by Sheriff Berry soon after Mr. Standard was carried to the hospital. They saw the warrant and it charged them jointly with the offense of robbing Mr. Standard. After being placed in jail, Fincher and Tuggle tried to get him to take the blame for all of it, saying that they could get out on bond and would get him a lawyer and try to get the case settled out of court. He was later placed in a separate cell by Sheriff Berry, and while there he gave a written statement of the facts concerning the robbery to an agent of the Georgia Bureau of Investigation, but in that statement he incorrectly said that Fincher was the one who took the money out of Mr. Standard's coat pocket. He was then returned to the cell where Fincher and Tuggle were, but was later removed as they kept beating him because he would not assume full responsibility for the occurrence. He
also testified that Fincher gave Sheriff Berry $40 of the money which had been taken out of Mr. Standard's billfold; and that Fincher used $35 of it for the purpose of buying whisky from Ralph Pope and "they" sold it. He also said that Fincher spent some of the money while in jail. The only article which he took from Mr. Standard was is billfold which contained only $92 at that time. He never saw Fincher hit Mr. Standard at any time, but he saw him around Mr. Standard in the yard during the night. The knucks did not belong to him, and the first time he saw them Fincher "had them out there that night." He did not know who took Mr. Standard's watch off him, but denied that he (the witness) did. They did not get a doctor for Mr. Standard during the night, although there was a telephone a quarter of a mile away. He got in a car with some boy for the purpose of getting a doctor, but Fincher got him out of the car and got the boy away. For some reason "they" did not want him to leave Tuggle's place.
John Berry, Sheriff of Newton County, testified that he arrested Fincher, Tuggle, and Hailey on a warrant charging them with robbing Mr. Standard, and at that time they denied knowing anything about the robbery and claimed that they did not know that Mr. Standard was or had been at Tuggle's place until just before daylight on the morning after the robbery. He first put them in a cell together, but later placed Hailey in a different cell. While Hailey was in a separate cell, he gave an agent of the Georgia Bureau of Investigation a written statement concerning the robbery, but the witness was not present when the statement was written and for that reason had no knowledge of its contents. He then put Hailey back in the cell with Fincher and Tuggle, but had to separate them again because Fincher and Tuggle were beating him. He said that Fincher first denied having any money, except $11, but after Hailey had made a statement to an agent of the Georgia Bureau of Investigation, he took $40 from a secret compartment of his pocketbook and gave it to him, saying at the time that Hailey had given it to him. He further testified that Tuggle and Fincher, after they were indicted for robbery and on the day they were to be tried, sent for him and voluntarily stated to him that they wanted to make a sworn statement about what happened at Tuggle's place on the night of the robbery, saying that they had found the Lord and that they wanted to confess to what they had done, that they wanted to tell the truth and take their punishment, and that liquor was the cause of it all.
V. K. Worth, an agent of the Georgia Bureau of Investigation, testified that he interviewed Luther Hailey, and that he freely and voluntarily and in his own handwriting, gave the witness a statement about the robbery of Mr. Standard, in which Hailey said that Fincher got Mr. Standard's billfold and $92 in money out of his coat pocket. While Hailey's written statement was admitted in evidence over objection, it has not been brought up as a part of the record.
In his statement to the jury, Charles Fincher denied any connection with the robbery and said that Luther Hailey, on the morning after the robbery, gave him $40, which he afterwards delivered to the sheriff; that he found four silver dollars in Tuggle's place of business and gave them to Tuggle; that he also found Mr. Standard's wrist watch in Tuggle's place of business near the door and gave it to Hailey, who later gave it to Tuggle. He denied any connection with the robbery but admitted that he and those present during the night of the alleged robbery were all drinking. He recounted the details of the affair which occurred in Tuggle's place during the early part of the night between Hailey, Standard, and Tuggle, and said that Tuggle soon after this ordered everybody to leave and that Tuggle then got his change, unplugged the juke box, and that he and Tuggle took another drink and went to bed. He also said that Lenard Standard came to Tuggle's place early the next morning, and that they picked up the two coats which Mr. Standard had on when he left Tuggle's place the night before, and that he helped them place Mr. Standard in an ambulance which his son had procured. Bobby Tuggle in his statement to the jury denied any connection with the robbery of Mr. Standard, but admitted that he had taken several drinks before Mr. Standard came to his place on the night of the robbery, and said that they had a "drunken brawl" there that night. He stated that he slapped Mr. Standard in his place of business; that he tried to get him out of his store; and that they fell down in the mud. He said that he had never seen the brass knucks until Sheriff Berry showed them to him after he was placed in jail. While he admitted slapping Mr. Standard in his place of business, he denied beating him while out in the yard. He said that he went to bed after getting Mr. Standard out of his place of business, and that he did not know what happened to him during the remainder of the night.
Roy Leathers, Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, contra.
John L. Jernigan, for plaintiff in error.
ARGUED SEPTEMBER 13, 1954 -- DECIDED OCTOBER 13, 1954.
Saturday May 23 03:34 EDT


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