Opinion
52106.
SUBMITTED APRIL 13, 1976.
DECIDED APRIL 22, 1976.
Robbery by intimidation. Muscogee Superior Court. Before Judge Davis.
Allison W. Davidson, for appellant.
E. Mullins Whisnant, District Attorney, Douglas C. Pullen, Lovick Anthony, Assistant District Attorneys, for appellee.
1. While the state has the burden of proving every critical essential element of the crime beyond a reasonable doubt, which on occasion includes disproving an affirmative defense contended for by the defendant ( Moore v. State, 137 Ga. App. 735), this burden is carried where it appears from the evidence that the defendant and others, after talking about robbing a store earlier in the day, entered a place of business, the co-defendant drew a knife and instructed the defendant to take the money from the cash register and the defendant did so, but witnesses testified that the co-defendant in no way menaced the defendant. The defendant's defense of coercion might have been, and was, disbelieved by the jury. The verdict was supported by the evidence.
2. When the defendant testified on direct examination that he had drunk beer and wine and smoked "a bunch of pot" prior to the robbery, he placed his character for smoking marijuana in evidence. Under such circumstances, the control of the cross examination was largely within the discretion of the court ( Weldon v. State, 84 Ga. App. 634 (2) ( 66 S.E.2d 920)) and it was not error to allow the state to ask the defendant where he got his supply and whether he was seeking to protect his source. The apparent reason for the defendant's testimony in the first instance had been to show a mental state involving lack of intent; to rebut this cross examination was proper.
3. Robbery by intimidation is a lesser included offense of the crime of armed robbery. Holcomb v. State, 230 Ga. 525 ( 198 S.E.2d 179). The defendant himself was not armed. An instruction that the jury, if they found the defendant not guilty of armed robbery should next consider the offense of robbery by intimidation was proper.
Judgment affirmed. Quillian and Webb, JJ., concur.