*1 47892. REEVES THE STATE. Judge. guilty charges, Accused was found
Clark, being felony, and the other two misdemeanor appeal from the denial new general grounds. trial motion is limited to the principal The State’s witness was a taxicab driver who transported defendant as a to the Atlanta Airport early morning April 27, in the hours of apprehensive by While en route the driver became Hoping reason of his fare’s attitude. to attract police attention from he testified he not drove at speed per of 90 to 100 miles hour but drove on curbs. Airport When the taxi reached the Atlanta testimony vividly offense occurred which driver’s thought described in these "I words: nothing felt safe then. I going wasn’t with the other cabs here. So got 'Hey you, hey you.’ I said, said, there he I 'Yes, said, sir.’ He 'Look.’ I I And turned and looked my over like that and he laid the .38 in face and cocked said, the hammer back. He 'Take the next damn exit stop you say out of here. You better not better nothing.’ your going you,’ said, 'If do I am to kill money.’ my pocket said, 'Give me that looked in said, and I found three I T dollars. don’t have but three money said, dollars.’ He money 'Put down.’ I steering said, down. He 'Put both hands on the stop, say said, wheel.’ He nothing.’ 'You better not better not 7). (T. disregarded The driver this mandate policeman signal stop when he saw a for the taxicab to Thereupon jumped at a cross walk. from his vehicle grabbing got gun officer, screamed "He has (T. going and he is to kill me.” the witness being genuinely frightened was confirmed as shown being questioned other this incident: query policemen replied as to his name that to their my frightened name at that know didn’t "I was so time.” finding police a .38 resulted
A *2 defense coat revolver of the unsworn statement consisted of picking up he found the claimed had who garbage County had in DeKalb any holdup. "I never had He stated undertaken a gun to sell to him but wanted intention permit carry it.” to I didn’t have a because by presented expressly the taxicab denied the version driver. together with the admissions
1. The evidence the state by in his unsworn defendant statement made uphold on the sufficient to a in that he had a revolver misdemeanors §§26-2903 Code Ann. license and that it was concealed. and 26-2901. person
2. "A assault when commits (b) (a) deadly with intent... to or with assaults right jury weapon.” § had the 26-1302. The Code Ann. accept witnesses to as true the constituting to the facts state reference robbery preference the denial of expressed unsworn intention as defendant (191 State, 55 699 SE statement. Rose App. 610, State, 60 Our said Harrison (4 Georgia, is an that "In 'An assault attempt injury person commit a violent [superseded by § Code Ann. § 26-1401 another.’ Code court, 26-1301], in Godboult 704), Supreme quoted 137, Court SE from a no actual 'To constitute an assault decision as follows: injury being only necessary shown, to show be need coupled injury, with an intention to commit so.’ apparent ability 748), Atkinson, SE Justice speaking for the court, said that 'there need not present be an actual ability to commit a violent injury person assailed, but if there be such a demonstration violence, coupled with an apparent ability to inflict the so as to cause the injury, person against whom it is directed fear reasonably to injury unless retreat to secure safety, his and under such circumstances compelled impending retreat to avoid an danger, though the assault is complete, the assailant never have been within striking actual distance of the person assailed.’ For an analogous case common carrier where violence,
there no actual but a quarrel between railroad conductor followed passenger pointing at antagonist, Court in Williams v. Supreme 186) ruled the facts to constitute an assault. *3 The evidence in the judice case sub therefore authorized
the jury to find every constituting element the felony of aggravated to rob had been Cochran v. proven. SE2d Bell, J., Hall, J., Judgment Eberhardt, C. P. P. affirmed. J., Pannell, Stolz, Quillian JJ., and concur. Deen and Evans, JJ., dissent. February
Submitted Decided
April 9, 1973. Zell,
Glenn for appellant. Slaton, R. Lewis District Attorney, Morris H. Rosenberg, Goode, Jr., Carter James H. Mobley, appellee. for Judge, dissenting. Deen, enthusiastically I would concur with opinion the in majority this case as it sets out the correct principles of law applicable to cases greater and lesser it were not the two is in direct conflict opinion majority App. 127 Ga. cases of Burns whole court recent State, Sturgis SE2d and compare Also merger of the the principles not applying cases uniformly. In narcotic crimes of lesser includable forgiven has this court Sturgis, supra, Burns such as and the lesser punishment and eliminated conviction and In non-narcotic of narcotics. illegal possession crime Thomas, has this court supra, as this case and cases such eliminated and punishment conviction and forgiven (of in illegal possession of the lesser crime Thomas, case). in supra, this in and This court particular in case, distinguish attempted has not cited or referred court cases above important the two whole way point. as to this opinions All are silent majority to. Sturgis, Burns and supra, results my opinion legislative pre- of a judicial usurpation constitute However, case opinion in this rogative. majority case. from this distinguish should those cases endeavor illegal possession The two lesser crimes of carrying it crimes with merge and are lesser includable intent greater aggravated crime of assault with therefore the same possessing authority lesser crimes under reversed, Burns as this Sturgis, supra, should be jeopardy. constitutes double
I respectfully dissent. dissenting in Judge, concurring
Evans, which affirms part. concur in the a pistol conviction for assault and *4 license, from that but dissent the conviction opinion which affirms No testified weapon (pistol). witness that he had pistol No testified was concealed. witness good opportunity defendant, to see the was able pistol. policeman, testifying state, to see the One arrest, swore that after the he saw the defendant object in his hand which looked like and he saw place object defendant policeman, in his The other
on whose premised, must be testified that he "searched” defendant pistol pocket. Obviously after arrest and found in his pistol policeman this was the same the first had seen in placed hands, defendant’s and which he saw it was pocket, pistol as was found. But testify pistol this witness concealed, did not that the fully presence or that he was not aware of its before he making made the search. It seems that he was a routine prisoner, good do, arrested all as officers will exactly person, weapons to determine what he had on his aught appears or here, otherwise. For the butt of the may fully barrel, exposed or the have been to his may pistol view. bulk, Or be that the ofwas such large weapon a rather caliber, of .38 that it was outlined imprinted clearly recognizable pistol or so as to be aas pocket, or he have seen him pocket policeman. as did the first prove beyond
The state’s burden was to a reasonable doubt that defendant carried the Compare this it did not do. 225; Stockdale Stripling 292; Killet (40 therefore dissent and would reverse the trial as to the conviction for a concealed TOUCHTON ALLSTATE INSURANCE
COMPANY.