Opinion
33232.
DECIDED SEPTEMBER 21, 1950. REHEARING DENIED OCTOBER 19, 1950.
Robbery; from Fulton Superior Court — Judge Andrews. June 21, 1950.
Frank A. Bowers, for plaintiff in error.
Paul Webb, Solicitor-General, Frank French, William Hall, contra.
The testimony of the eyewitness to the robbery being direct evidence, unimpeached, and not so inherently incredible as to justify its being disregarded by the trial court or this court, it was not error to overrule the motion for a new trial on the general grounds. Code, § 38-1805; Watson v. State, 13 Ga. App. 181 (2) ( 78 S.E. 1014).
DECIDED SEPTEMBER 21, 1950. REHEARING DENIED OCTOBER 19, 1950.
Henry Grady Webb was indicted and tried in the Superior Court of Fulton County for the offense of robbery in two counts. Count 1 alleged that on April 11, 1950, he robbed one John S. Hall of a coat, wrist watch, ring and other personal accessories. He was convicted on this count. Count 2 alleged another robbery of a different person on the same date, and on this count the defendant was acquitted.
The testimony of Hall is as follows: "I identified Henry Grady Webb but I didn't know him previously to seeing him on the 11th day of April, 1950, between 5:30 and 6:00 in the afternoon when I was on my way home from work, on Plaza Park; when all of a sudden someone was right beside me and he was demanding my money. I told him I didn't have any and showed him my wallet. He asked for my watch and then asked for my ring, and then asked for my fountain pen, all of which I gave him. He said, `Give me your coat.' I was just about at my wit's end, scared to death. He says, `I am not in this racket for fun.' He says, `You are easy prey.' I did not see any weapon. He had his hand on his pocket, kind of like this. This place where I was walking on Plaza Way is in Atlanta, Fulton County, Georgia. I had a seventeen jewel Bulova man's wristwatch curved to fit the wrist, with a yellow gold stretchband and a man's diamond ring 41 I believe, yellow gold. My fountain pen was a Parker fountain pen with a silver tip. He also got my tie pin and key chain which was a yellow gold tie pin and key chain to match. Those things were worth about $200 and were my property. He did not offer to give them back to me. I allowed him to take them because I was scared, just scared to death, and I didn't know what in the world was happening. I was shocked and stunned. I went straight home and when I was calm enough I reported it and later identified Henry Grady Webb as the man who robbed me on Plaza Way."
The defendant was arrested that same night, and the fountain pen, identified by Hall, was found on his person. The defendant in his unsworn statement further admitted that he had received the fountain pen, together with the ring, and a tie and key chain, from Hall, but claimed that Hall had sold him these articles for $5.
The defendant was convicted and filed his motion for a new trial on the general grounds and one special ground, the latter, however, being subsequently abandoned. The exception is to the judgment of the trial court overruling the defendant's motion for a new trial.
The defense is based entirely upon the question of whether the testimony of Hall presents such a fantastic and unbelievable state of facts that his story would not be believed by a reasonable man. Counsel for the defendant cites Oakes v. State, 201 Ga. 365 (39 2d, 866), and Johnson v. State, 1 Ga. App. 729 ( 57 S.E. 1056) in support of his contention that "courts and juries are not bound to believe testimony as to facts incredible, impossible or inherently improbable." ( Patton v. State, 117 Ga. 230, 43 S.E. 533). We take this to mean statements which are not merely unusual but which run contrary to natural law and the universal experience of mankind. See Watson v. State, 13 Ga. App. 181 (2) (supra). While it may be unusual for a man to allow himself to be robbed in the middle of a crowded area, and to walk away afterward without looking back or making any immediate effort to apprehend his assailant, it is not impossible, and allowance must be made for the reactions of different temperaments to threats of violence. It cannot be said, as counsel for the defense insists, that the testimony is so fantastic as to be absolutely incredible. It was believed by the jury, who returned a verdict of guilty, and by the judge, who overruled the motion for a new trial. As testimony it is direct, unimpeached, and warrants the conviction. There is, in consequence, no error of law, and the trial court did not err in overruling the motion for a new trial on the general grounds.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.