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LAMBERT v. THE STATE.
61379.
DEEN, Presiding Judge.
Attempted armed robbery, etc. Cobb Superior Court. Before Judge Williford, Senior Judge.
The defendant was convicted in Count 2 of an indictment charging him under Code 26-1001 with criminal attempt to commit armed robbery. He was convicted in Count 3 of the offense of aggravated assault under Code 26-1302 by shooting at a security guard.
The defendant was sentenced to ten years under Count 3 and to 10 years under Count 2, sentences to be served consecutively. He complains that a motion to merge the convictions for one sentence only was erroneously denied in that the evidence shows that as a matter of fact under 26-505 (a) one is an included crime of the other so as to forestall conviction under both.
The defendant entered a branch bank during the lunch hour with a stocking mask, dark glasses, wig and bandana. He had a gun in his hand which he was pointing generally into the room and shoved a visitor who happened to be an off-duty policeman saying, "Get out of the way." Shots were exchanged between him and a uniformed bank security guard who was sitting behind the teller line with his upper chest and head visible from the door. The defendant was wounded, captured, and identified.
See Addison v. State, 239 Ga. 622 (238 SE2d 411) (1977) and State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974). In the present case, however, the attempt to commit armed robbery was completed when the defendant entered the bank armed with a gun and wearing a disguise, with the manifest intent to commit a theft. At that moment there was (so far as we know) no intent to commit an aggravated assault. This act came about when, in an obvious attempt to incapacitate the armed security guard, he pulled the trigger of his own weapon in that direction.
The appellant's contention that the defendant is being punished twice for a single crime raises a question of the construction of Code 26-1302 which defines aggravated assault as assault with intent to rob or assault with a deadly weapon. The punishment for an act fitting either of these definitions is one to ten years, unless the person assaulted is a peace officer engaged in the performance of his official duties, in which case the punishment is five to twenty years. Officer Waynick was in fact a peace officer in uniform but was at the time of this incident acting as a security guard for the bank rather than as an officer of the local city police department. The court withdrew from jury consideration that part of Count 3 of the indictment which charged the defendant with assault on a peace officer performing his official duties, and quite properly limited that count to the language charging him with aggravated assault with intent to commit armed robbery. Since proof that the peace officer was in the performance of official duties has no bearing on the crime other than to lengthen the punishment, the crimes of attempted armed robbery and of aggravated assault are separate and distinct, and separate sentences were properly imposed.
J. Lee Rose, for appellant.
DECIDED JANUARY 29, 1981.
Thursday May 21 23:10 EDT


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