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In Haire v. State, 209 Ga. 378 (5) (72 S.E.2d 707), this court held that "Where one is indicted for robbery `by force and intimidation,' and on the trial it appears from the evidence that, if a robbery was committed, it was by force or violence and not by intimidation, it is not error for the court to fail to charge the law relating to robbery by intimidation and the punishment for one found guilty of robbery by intimidation."
Summary of this case from Perdue v. StateOpinion
17968.
ARGUED SEPTEMBER 8, 1952.
DECIDED OCTOBER 16, 1952.
Robbery by force. Before Judge Thomas. Pierce Superior Court. July 2, 1952.
S. Thomas Memory and Homer L. Causey, for plaintiff in error.
J. R. Walker, Solicitor-General, Kopp Peavy, Eugene Cook, Attorney-General, and J. R. Parham, Assistant Attorney-General, contra.
Colon Lamar Haire, upon an indictment charging that he did "wrongfully, fraudulently, and violently, by force and intimidation" take from the person of E. W. Hackney with intent to steal the sum of $180, the property of Markey Supply Company, was found guilty by the jury of robbery by force and violence, and his punishment fixed at 4 years in the penitentiary. His motion for a new trial upon the general grounds and 7 special grounds was overruled, and the case is here on exceptions to that order. Held:
1. It was not error to admit in evidence a hammer, as complained of in the first special ground of the motion for a new trial, over the objection that it had not been identified as being used by the defendant or as having any connection with the case on trial. There was evidence that the hammer was taken from the automobile of the defendant; that a dark spot on the hammer was blood; that the person alleged to have been robbed was hit by an object, making a hole in his head; and there was testimony by a physician that the head injury could have been caused by a blow from a hammer.
2. Where the defendant introduces witnesses who testify as to his good character, the State has the right to a thorough and sifting examination of the witnesses to determine the knowledge and information upon which their opinion as to good character is based. The hypothetical questions here propounded by counsel for the State were based upon facts previously testified to in this case. Special grounds 2, 3, and 4, which complain of the questions propounded and answers given by witnesses for the defendant, do not show reversible error.
3. Where, after the jury had retired, and while considering the case, at their request they were brought into the courtroom, and in reply to a question from the court as to whether they were troubled by a question of law or of fact a juror replied, "Insufficient evidence," the following statement by the court to the jury — "Gentlemen, some jury has to pass on this case. I wonder if you should deliberate longer if you could get together? Retire to the jury room and see if you can get together on it. The evidence is a question of fact, and the court can't help you on that" — was not erroneous as (a) expressing an opinion, (b) forcing the jury to return a verdict, (c) prejudicial, or (d) misleading and confusing to the jury, as complained of in special ground 5.
4. An assignment of error in a motion for a new trial, that "the court erred in failing to charge the jury on the law of self-defense," is too general, vague, and indefinite to be considered. Smith v. State, 125 Ga. 300 (1) ( 54 S.E. 124); Watkins v. State, 175 Ga. 473 (2) ( 165 S.E. 269); Harris v. State, 178 Ga. 746 (3) ( 174 S.E. 240). For this reason special ground 6 is without merit.
5. Where one is indicted for robbery "by force and intimidation," and on the trial it appears from the evidence that, if a robbery was committed, it was by force or violence and not by intimidation, it is not error for the court to fail to charge the law relating to robbery by intimidation and the punishment for one found guilty of robbery by intimidation. Bradham v. State, 51 Ga. App. 436 ( 180 S.E. 748); Long v. State, 12 Ga. 293. Special ground 7 is without merit.
6. The verdict is supported by the evidence.
7. It was not error to overrule the motion for a new trial.
Judgment affirmed. All the Justices concur.
No. 17968. ARGUED SEPTEMBER 8, 1952 — DECIDED OCTOBER 16, 1952.
The amendment to the motion for a new trial contains the following grounds: (1) That the court erred in admitting a hammer. (2) That the court erred in permitting a defendant's witness, Hamilton, who had testified as to the defendant's good character, to testify on cross-examination as follows: Q. "Mr. Hamilton, a man that was running around drinking whisky and hunting women — would you call that a man of good or bad character?" A. "I would say that was bad character" — the objection being that the evidence was irrelevant, prejudicial, and inflammatory, a conclusion of the witness about some matter foreign to the issue. (3) That the court erred in permitting a witness for the defendant, on cross-examination, who had testified as to the good character of the defendant, to testify as follows: "I would say that a man's character that ran around at night buying and drinking whisky and went down to Jacksonville hunting up a bunch of women and getting back to Waycross about daylight" — "that was going around buying and drinking whisky and driving down to Jacksonville to hunt up a bunch of women at one or two or three or four or five or six o'clock in the morning — I just don't know the details of it, well it would have to be bad character" — the objections being the same as stated in ground (2). (4) That the court erred in permitting Fred McDonald, a character witness for the defendant, to testify on cross-examination as follows: "You mean what he would have to do to break a law? So far as I know, it would be just breaking a law — I mean like you go out and have a wreck — I mean get to drinking and have a wreck or something like that — that would be breaking a law. I don't know of any law against drinking. I would say he had a good character"; the objections being that the evidence was prejudicial and harmful to the movant because it tended to and did show that the defendant was a man of bad character, whereas the witness intended to swear and did swear that the defendant was a man of good character, and such evidence framed by the prosecuting attorney in the language shown nullified the witness' testimony of good character, and misled and confused the jury as to the real issues in the case, and was an expression of opinion by the court that the defendant had bad character. (5) This ground complains of the court's recharge to the jury, as set out in headnote 3. (6) This ground asserts that "the court erred in failing to charge the jury on the law of self-defense." (7) It is alleged in this ground that the court erred in charging the jury without request the provisions of Code §§ 26-2501 and 26-2503, in full. The court charged the law relating to robbery by open force or violence, and the punishment for one found guilty of robbery by open force or violence.