Opinion
27288.
SUBMITTED JUNE 13, 1972.
DECIDED JUNE 28, 1972.
Armed robbery. Fulton Superior Court. Before Judge Shaw.
Glenn Zell, for appellant.
Lewis R. Slaton, District Attorney, Joel M. Feldman, Morris H. Rosenberg, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Dorothy T. Beasley, Assistant Attorneys General, for appellee.
This appeal results from a conviction of armed robbery. The defendant, together with a co-indictee, drove up to an outdoor telephone booth where the victim was making a telephone call. The defendant got out of the automobile, walked up to the victim, displayed a pistol and demanded the victim's cash and billfold. After these items were surrendered by the victim, the defendant gave the pistol to his companion with instructions to keep the victim covered while he got back in the automobile. The defendant and his companion then drove off and fired one shot from the pistol. The victim made note of the license number on the automobile and gave such information to the police. Less than two hours later the automobile was spotted, and the occupants arrested. A loaded pistol with one empty shell was found in the automobile. The victim identified the defendant as being the person who robbed him at gunpoint. After conviction, the jury fixed the defendant's sentence for armed robbery at six years. The sole enumeration of error relied upon contends that the trial court erred in failing to charge on robbery by intimidation. Held:
Where as in the present case, the evidence authorized a conviction of armed robbery as defined in Code Ann. § 26-1902, but did not authorize a conviction of the lesser offense of robbery by intimidation, it is not error to fail to charge upon the lesser offense. See Smith v. State, 228 Ga. 239, 294 ( 186 S.E.2d 788).
Judgment affirmed. All the Justices concur.