Summary
In Brock v. State, 232 Ga. 47 (2) (205 S.E.2d 272), it was held that it is not error in an armed robbery case to fail to charge on robbery by intimidation where there is evidence of robbery by use of an offensive weapon, but no evidence of robbery by intimidation.
Summary of this case from Bixby v. StateOpinion
28679.
SUBMITTED FEBRUARY 25, 1974.
DECIDED APRIL 4, 1974.
Armed robbery. Fulton Superior Court. Before Judge Williams.
Andrew A. Smith, Marvin A. Soskin, for appellant.
Lewis R. Slaton, District Attorney, Raoul Lerow, Morris H. Rosenberg, J. Melvin England, for appellee.
Willie Otis Brock was convicted in two counts of armed robbery and sentenced to serve 15 years on each count to run concurrently. He appeals to this court. Held:
1. The appellant contends that his motion for new trial should have been granted on the general grounds because the verdict was contrary to the weight of the evidence. We have carefully reviewed the evidence in this case and find it sufficient to support the verdict. The defendant was positively identified by the two victims and an eyewitness as one of the persons who committed the robberies.
2. The appellant contends that the court erred in failing to charge the jury on robbery by intimidation since it is a lesser included offense in the offense of armed robbery. We do not agree with this contention of the appellant. Although robbery by intimidation is a lesser included offense in the offense of armed robbery (Ga. L. 1968, pp. 1249, 1298; 1969, p. 810; Code Ann. § 26-1902), there is no evidence of robbery by intimidation in this record and a charge thereon is not required. Holcomb v. State, 230 Ga. 525 ( 198 S.E.2d 179). Compare Ward v. State, 231 Ga. 484 ( 202 S.E.2d 421).
3. The appellant complains of a portion of the purported charge of the trial court but the complained of charge is not contained in the charge of the trial court and the question presented will not be decided.
Judgment affirmed. All the Justices concur.