Jackson v. State

Full title: JACKSON v. THE STATE

Court: Court of Appeals of Georgia

Date published: Oct 4, 1977

143 Ga. App. 406 (Ga. Ct. App. 1977)

238 S.E.2d 752

Opinion

54393.

SUBMITTED SEPTEMBER 15, 1977.

DECIDED OCTOBER 4, 1977.

Attempt to commit armed robbery. Dougherty Superior Court. Before Judge Kelley.

Clayton Jones, Jr., George W. Woodall, for appellant.

William S. Lee, District Attorney, Hobart M. Hind, Assistant District Attorney, for appellee.

BANKE, Judge.

The defendant appeals his conviction for criminal attempt to commit armed robbery and for possession of a firearm during the commission of a crime.

1. The evidence established a sufficient connection between the defendant and the attempted robbery to support his conviction as a party to the crime. Although the defendant testified that he was merely an innocent customer at the convenience store where the crime took place, the cashier-victim's testimony authorized the jury to believe otherwise. According to the cashier, the defendant entered the store only seconds before a masked gunman, who announced: "This is a holdup and we want all of your money." No other persons were present in the store. While forced to hold his head to the counter, the cashier then heard the defendant and the gunman engage in a barely audible conversation. The cashier obtained a pistol, gunfire ensued, and all three were wounded. A few moments later, the cashier found the defendant lying in the parking lot outside. He testified that the defendant told him, "Please, mister ... don't shoot me no more; we didn't mean to hurt you." These actions and statements were ample evidence that the defendant was a direct participant in the attempted robbery and, therefore, a party to the crime. See Code Ann. § 26-801 (b) (3); Holiday v. State, 128 Ga. App. 817 ( 198 S.E.2d 364) (1973).

2. Where only one firearm is involved in the commission of an armed robbery, its possession becomes a lesser included offense in the armed robbery, and an accused may not be convicted of both offenses. Roberts v. State, 228 Ga. 298, 300 ( 185 S.E.2d 385) (1971); Chumley v. State, 235 Ga. 540, 541 (2) ( 221 S.E.2d 13) (1975). See Code Ann. § 26-506. Therefore, the conviction for possession of a firearm during the commission of a crime is reversed.

3. In view of the decision in Division 2 of this opinion, it is unnecessary to review the defendant's remaining enumerations of error.

Judgment affirmed in part and reversed in part. Quillian, P. J., and Shulman, J., concur.

SUBMITTED SEPTEMBER 15, 1977 — DECIDED OCTOBER 4, 1977.