Opinion
29957.
DECIDED JANUARY 27, 1943.
Assault with intent to rob; from Irwin superior court — Judge Eve. October 13, 1942.
Oliver K. Mixon, Philip Newbern, for plaintiff in error.
W. C. Forehand, solicitor-general, contra.
1. If in an indictment under the Code, § 26-1405. a demand is alleged, such allegation may be treated as surplusage. If the evidence shows, under such an indictment, both a complete battery and a demand, such overproof in the nature of a demand will not be considered error.
2. Under such conditions as are related in the first headnote, it was not reversible error for the court to charge that it was unnecessary, as an essential element, for the State to prove the demand although it was alleged.
DECIDED JANUARY 27, 1943.
Alma Elana James was convicted of assault with intent to rob Willie Mena Kiser, hereinafter called the prosecutrix. Her motion for new trial was overruled and she excepted.
The State's evidence tended to show that defendant and prosecutrix left Jacksonville, where they lived, about noon. The prosecutrix claimed to possess supernatural healing powers and had amassed a little fortune in her seventy-odd years of life. The defendant induced the prosecutrix to get in a car which belonged to defendant's husband, but was driven by defendant, for the purpose of going a short distance in the country to apply the healing powers to some one close to the defendant. They continued to drive out of Florida into Georgia, the defendant still pretending to be in search of the patient. Night overtook them. They stopped by the side of the road; the prosecutrix, resting her head in the window of the car, fell asleep. The defendant went to the back of the car where her husband, who was a carpenter, kept his tools, and obtained a hatchet with which she hit the prosecutrix several licks on the head, and ran her hand beneath the clothing of the prosecutrix where money and Government certificates were fastened in a wallet. The prosecutrix dissuaded the defendant, at this time, from taking the money. The defendant drove on further into Georgia until she reached the county of Irwin, where the car gave out of gas. This was after sunrise, the day following the day they left Jacksonville. The defendant knew of the valuables the prosecutrix owned and knew that when prosecutrix left home she usually carried them in a wallet beneath her clothing. At the place where the gas gave out the defendant again got out of the car and procured the hatchet. The prosecutrix got out and gave the defendant a dollar with which to buy gas. The defendant again attacked the prosecutrix with the hatchet. The outcry of the prosecutrix attracted the attention of several people who went to the scene. After the prosecutrix had received blows from the hatchet she caught the defendant's arm in her mouth and secured the hatchet, then made her way hastily to a near-by farmhouse. By some of those thus attracted the prosecutrix was carried to a hospital where she remained for some time. At the scene where the last affray occurred several of the State's witnesses had a conference with the defendant in which she stated that she had stolen her husband's car to go to Fitzgerald to see kinsfolk of the prosecutrix. Several witnesses testified that on the occasion the defendant was seen tearing to pieces certain documents which later proved to be her driver's license and some pawn tickets. One of the witnesses picked up the pieces and put them together. When questioned as to why she tore up the documents she said: "I don't know, sir, except I was scared."
The record reveals further that the defendant freely and voluntarily, without coercion and without any promise or hope of reward, in a conversation said in substance: "I knocked the old woman in the head because she promised me two dollars to get gas, and she wouldn't give it to me, and I decided I would knock her in the head and take it away from her. The old lady didn't have any money, but she did have certain Government certificates and papers with her." She stated that she knew the prosecutrix had these things in Jacksonville before this occurrence. The defendant's statement and her evidence tended to show that the defendant was not guilty as charged by the prosecutrix, but that the prosecutrix was the aggressor and attacked the defendant because the gas gave out; that because the gas gave out the prosecutrix became enraged and defendant hit her with the hatchet to prevent injury from biting. The defendant had a scar on her arm showing that she had been bitten.
1. ( a) The record as above set out reveals sufficient evidence to sustain the verdict on the general grounds.
( b) Under the general grounds the defendant also attacks the judgment for the reason that under the allegations of the indictment the evidence was insufficient as a matter of law to sustain the verdict. It is contended that the indictment alleged a demand on the part of the defendant, which would bring the offense, if any, under the latter division of the provisions of the Code, § 26-1405, and that the evidence did not show a demand. There was no demurrer filed to the indictment. Code § 26-1405 reads as follows: "An assault with intent to rob is where any person shall, with any offensive or dangerous weapon or instrument, unlawfully and maliciously assault another, or shall, by menaces, or in and by any forcible or violent manner, demand any money, goods, or chattels of or from any other person, with intent to commit robbery upon such person."
The body of the accusation alleges: "For that the said Alma Elana James on the 2nd day of September in the year 1941, in the county and State aforesaid, did then and there unlawfully and with force and arms make an assault with intent to rob one Willie Mena Kiser, and in her efforts to do so did then and there demand of the said Willie Mena Kiser, money, and forcibly and in a violent manner strike and beat the said Willie Mena Kiser with a hatchet, commonly known as a chop-ax, with the intent to commit a robbery from the person of one Willie Mena Kiser; and thereby in a violent and forcible manner take from her person money and other valuable property." We do not think this contention has any merit. The indictment alleged that the instrument was "an offensive and dangerous weapon or instrument," indeed, a deadly weapon, and that it was maliciously used. We do not understand the first portion of the Code section referred to to mean that if the evidence shows a completed beating there might not also be along with it a demand on the victim. Then, also, if all the other elements of the offense embraced in the first division of the section are charged (and we hold that they are alleged in the indictment before us) the mere allegation of a demand may be treated as surplusage. However, the evidence as related hereinbefore shows the offensive, dangerous and deadly character of the weapon in the manner in which it was used, and also a demand. Under the facts of this case the demand faded into and lost its identity as such in the completed act of the beating. There was nothing to the contrary ruled in Erwin v. State, 117 Ga. 296 ( 43 S.E. 719), cited by counsel for defendant. We find no valid reason to reverse the judgment on the general grounds for any reason assigned.
2. The special grounds are numbered 4, 5, 6, 7, and 8. It is easily discerned from the record that the theory of the State was that the defendant knew of the habits and wealth of the prosecutrix, procured the automobile, and induced the prosecutrix to leave her home; then carried her beyond the limits of her State into Georgia for the purpose of executing a premeditated plan to obtain by robbery the valuables of the prosecutrix.
Ground 4 complains that the court erred in admitting testimony that defendant tore to pieces her driver's license and pawn tickets. This ground is without merit. It was a legitimate circumstance, which the jury was authorized to consider along with all the other testimony in the case, indicating that the purpose of the defendant in destroying these documents was to conceal her conduct and identity.
Ground 5 complains because the court admitted testimony that defendant had stolen her husband's automobile. It is contended that this put the character of the defendant in issue over her objection. With this contention we can not agree. It was proper to consider this testimony as an incriminating admission tending to establish the fact that the defendant secretly and in this manner procured the automobile for the purpose of executing her malicious intent to rob the prosecutrix. This was a voluntary incriminating admission, freely and voluntarily made by the defendant at the scene of the transaction. Under the record it might also be considered as a part of the res gestae.
Ground 6 complains of the following charge to the jury: "In this particular case the State contends that, on the occasion under investigation, the defendant now on trial did, with a certain deadly weapon, a hatchet, then and there commit an assault upon the person of the prosecutrix for the purpose of taking from her money or other things of value." It is contended that this was erroneous because the indictment did not charge the weapon to be "deadly or offensive and dangerous." We can not agree to this reasoning. The instrument was alleged to be a "hatchet" generally known as a "chop-ax." The instrument itself was introduced, and the effects showed it to be "offensive, dangerous, and deadly." The effects denominate the instrument more particularly than the conclusive words of the statute. There is no merit in this ground.
Grounds 7 and 8 are argued together and are treated together. They assign error on the ground that the court erred in charging the jury that no demand was necessary. The court charged the law correctly under the allegations of the indictment and the facts introduced to support them. Moreover, the defendant made the statement that the prosecutrix promised her two dollars with which to buy gas, and refused to pay it, whereupon the defendant struck her with a view to taking the money by force. This statement, coming from the defendant, was sufficient evidence of a demand, if indeed proof of such demand was essential.
We find no merit in any of the assignments of error that would warrant a reversal.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.