*1 STATE. v. THE 47822. THOMAS January Decided Submitted 16, 1973.
March *2 appellant. Hugh Wallace, Q. for Hasty, Attorney, Thompson, FredM. District W.Donald appellee. Hinson, Thomas H. for Judge. Bell, Chief Several of the enumerations of go question sufficiency error to the as to the which evidence authorized the defendant’s conviction of attempt robbery an to commit armed court’s charge jury argued to the on that offense. It is that since prior no force and violence was used to the attendant placing gasoline in the tank of the vehicle that under robbery our statute the defendant cannot be convicted on attempt disagree. robbery. an to commit armed We part Amended Code 26-1902 defines armed person robbery when, as follows: "A commits armed with property theft, intent to commit he takes of another from person presence another, or the immediate use weapon.” of an offensive At the time the attendant *3 pumped gasoline taking tank, into the there was no property meaning of the of another within the of the weapon statute. Once the defendant drew the and shot attempt unlawfully the victim there was an take the property gasoline, by another, the use of an weapon. upon offensive No other reasonable conclusion respect this state of facts can be reached. With to the question identity defendant, of the cir cumstantial evidence is more than sufficient to show perpetrator attempted that he was a of this armed robbery. The mere fact that the victim was not sure or positive was not in this identification that or the fact he only by photograph testified as to one identification as opposed police testimony to the officers’ of others cannot cause a reversal in this It case. is to be remembered that prior other evidence shows that to the time of this crime fitting defendant was seen in an automobile description appeared gasoline the one that at station, possession of a pistol wearing a black hat. After the crimes were committed he was observed wearing a black hat and he had a black hat when Additionally, arrested. the defendant admitted having possession gun of a shortly afterwards and a black hat. conviction for attempted robbery armed was authorized and there was no error in the trial court’s charge on offense. this complains
Defendant of his conviction of the counts charging him with aggravated assault with a deadly weapon and a carrying pistol without a license. Amended (a) Code 26-506 provides: "When the same conduct of an § accused may establish the commission of more than one crime, the accused may prosecuted for each crime. He not, however, may be convicted of more than one crime (1) if other, one crime is included in the ...” The crime weapon without a license is not included within the crime of aggravated assault with deadly weapon. While these offenses one transaction, neither other, included within the for they proof involve of distinct essential elements. The lesser crime, carrying license, without a has the element of lack of the issuance of a license the ordinary. Amended Code 26-2903. This element is not necessary prove crime of aggravated assault with a deadly weapon. The result in this case is even more demanded in view of the evidence that the defendant was in possession of the pistol the commission before after aggravated assault. This enables one to clearly comprehend that the elements of the crimes were not identical and that they are separate and distinct ones, each of which separately together or will sustain a *4 conviction.
Thus there was no error in charging committed jury the on offenses; both in failing charge to that defendant could not be both; convicted of or in sentencing the defendant 542
on both offenses. gun a having possession of
Defendant
admitted
this
commission of
alleged
after the
shortly
unsworn
part
a
This
of his
statement
having
black hat.
these
charge on admissions and
authorized the court’s
related to
the offenses.
admissions were
all
testify
to
permitted
witnesses were
Several state
made
the victim
concerning
out of court identification
police lineup
photographs
and when a number
him.
was
testimony
were exhibited to
This
admissible.
6)
792).
(95
State,
v.
(5,
Montos
Judgment affirmed. Evans, Stolz, JJ., Hall, J.,P. Clark and concur. concurs J., Been, the judgment. dissents. dissenting. 2 and to
Deen,
Judge,
dissent
Division
judgment
of conviction as to
lesser crime
without
license.
v.
this court in the recent cases of A
majority of
(195
State,
v.
189),
Sturgis
127 Ga.
828
SE2d
App.
(195
State,
682),
held that where
App.
Ga.
SE2d
two
took
on
same date
allegedly
place
offenses
out
the same
that where
evidence
they
shows
*5
greater
the
merges
the lesser crime
with
transaction
Burns,
stand.
conviction on both counts cannot
that a
heroin and ma-
supra,
involved
supra,
Sturgis,
in narcotic
same rule and standard
and the
rijuana,
crimes where
in all other
applied uniformly
cases must be
convictions.
multiple
there are
us,
states in
opinion
In
the majority
the case before
one
2:
these offenses arose
Division
"While
other,
transaction,
they
for
is included within the
neither
The lesser
of distinct essential elements.
proof
involve
license,
crime,
the
pistol
without a
has
element
carrying
ordinary.
of a license
the
by
of lack of the issuance
necessary
26-2903. This
is not
Amended Code
element
assault with a
prove
greater
aggravated
to
the
crime of
point
the identical
weapon.”
exactly
This is
deadly
supra.
and Sturgis,
tried to make
unsuccessfully
of
the
pointed
selling
There I
out that while the offenses
drugs
the
without
drugs and in
of
possession
(or
transaction,
during one
prescription)
a license
they
proof
the
for
involve
neither
is included within
other
crime, carrying
of distinct essential elements. The lesser
pre-
the
without
a license or
possessing
or
narcotics
the issuance of a
has the element of lack of
scription,
This element
is
by drug
druggist.
license
authorities or a
illegal
of the
sale
prove
greater
the
crime
necessary
291)
(5) (171
State,
is still
drugs.
uniformly out arising lesser crimes involving all crimes committed same transaction. I respectfully dissent.