Opinion
23080.
SUBMITTED SEPTEMBER 14, 1965.
DECIDED OCTOBER 7, 1965.
Robbery by force. Murray Superior Court. Before Judge Pope.
J. W. Yarbrough, for plaintiff in error.
Robert L. Vining, Jr., Solicitor General, Arthur K. Bolton, Attorney General, J. R. Parham, contra.
1. The court did not err in overruling the motion for new trial on the general grounds.
2. The assignments of error in grounds 1, 2, and 3 are without merit. The evidence in the case, including the sworn testimony of the defendant, does not show that the act of the defendant in taking the officer's gun from his holster was done for the purpose of resisting an illegal arrest.
3. It was not error for the trial judge to fail to charge that in all felonies except certain enumerated ones, the jury may recommend punishment as for a misdemeanor, since the defendant was charged with the offense of robbery by force, which is one of the excepted felonies.
4. The assignment of error in ground 5 is without merit. What the defendant may or may not have intended to do when he took the gun from the officer's holster was a jury question, and the court properly refused to permit the witness to give his opinion.
SUBMITTED SEPTEMBER 14, 1965 — DECIDED OCTOBER 7, 1965.
Charles Harris was tried in Murray County Superior Court on an indictment charging him and Billy Kendrick with the offense of robbery by force. The jury returned a verdict of guilty, recommending mercy, and fixing his sentence at four years.
The defendant filed a motion for a new trial on the general grounds, and an amended motion which added five special grounds, as follows: (1) That the evidence required the court to charge the jury Ga. L. 1953, Nov. Sess., pp. 556, 597 ( Code Ann. § 68-1668 and 68-1669), regarding legal and illegal stopping, standing, or parking of motor vehicles on public highways, and the authority of police officers to remove such vehicles, or to have them removed; (2) that the evidence required the court to charge the jury Code § 27-207, respecting the right to arrest without a warrant; (3) that the court erred in failing to charge the law respecting the right to resist illegal arrest; (4) that the court erred in failing to instruct the jury that the punishment for certain felonies may be reduced as for a misdemeanor; and (5) that the court committed error in refusing to allow a witness for the defendant to answer the following question, "In your opinion at that time were they trying to rob him of anything that you know of?"
The trial judge denied the motion for new trial, as amended, and the exception is to this judgment.
The evidence showed that: While driving his car on a paved highway in Murray County, Kirby Patterson, a deputy sheriff, came upon a car parked in the middle of the highway on a hill crest, with all doors open, and the owner, L. C. Cline, Billy Kendrick, and the defendant, Charles Harris, outside the car drinking whiskey. When the officer got out of his car, the defendant and Cline walked to the rear of the car, and Kendrick was lying on the pavement. The officer asked them what they were doing and Cline replied that they had stopped to take a drink. The officer informed them that they were under arrest for public drunkenness, and illegal parking on a public highway. After considerable physical effort he put the three in the back seat of his car. The front seat was occupied by another person who was under arrest for public drunkenness. Immediately after the officer started his car the defendant and Kendrick suddenly locked their arms around his neck and forehead, jerking him back partly over the back of the front seat, and the defendant, while holding the officer with one arm, snatched the officer's gun from his holster, pointed it at the rear of his head, cocked it, and threatened to kill him if he should refuse to get out and open the car doors. The defendant kept the gun pointed at the officer until all occupants were out of the car and until the officer snatched it from the defendant. The State's evidence showed that the officer did not threaten to use the gun and that he did not touch it until he took it away from the defendant. When the officer replaced the defendant and his two companions in the car he carried them to the common jail and immediately brought formal charges against them for public drunkenness.
The defendant in his sworn testimony stated that: He and his companions were stopped on a hill, standing behind the car, taking a drink of whiskey, when the officer came. The officer did not have a warrant to arrest him, and did not tell him what he was being arrested for, but he thought that he was being arrested for drunkenness. The officer struggled with Kendrick before placing him in the car. The defendant went across to the car and the officer commanded him to get in it. The defendant stated that he was not drunk, and the officer shoved him in the car and slammed the door on him. The defendant did not like the way the officer pushed him in the car, and the defendant hit the officer in the shoulder. The officer made a move toward his gun, and Kendrick grabbed it. The defendant put his arm around the officer's neck and pulled him back against the seat of the car. When Kendrick said, "he is going to shoot you," the defendant reached down and got the gun out of the holster. He took the gun to keep the officer from getting it out and shooting him. After they got out of the car, he voluntarily gave the gun back to the officer, and the officer hit him in the head with it.
The only headnote requiring elaboration is headnote 3. In ground 4 it is asserted that it was error to fail to charge the jury Code Ann. § 27-2501, providing that in all felonies, except those therein excepted, the jury may recommend punishment as for a misdemeanor. It is contended that if the evidence in the case showed that the crime of robbery was committed, it was committed by the use of an offensive weapon, which is not one of the excepted felonies. Counsel for the defendant cites in this connection Moody v. State, 216 Ga. 192 (3) ( 115 S.E.2d 526), in which it was held that robbery by the use of an offensive weapon was not one of the felonies excepted in the Act of 1939 (Ga. L. 1939, p. 285; Code Ann. § 27-2501), and that the trial judge should have charged the jury that they might recommend punishment as for a misdemeanor. The defendant in the present case was charged with the crime of robbery by force, and rulings made in the Moody case are not applicable in the present case.
The law on the question of whether or not misdemeanor punishment may be imposed for the crime of robbery by force needs clarification by the General Assembly of this State. In § 27-2501 of the Code of 1933 it was provided that all felonies, except those therein enumerated, are punishable as prescribed, but on the recommendation of the jury trying the case, when approved by the trial judge, the crimes shall be punished as misdemeanors, and that the judge trying the case may reduce the felonies to misdemeanors. The excepted felonies did not include any crime of robbery.
In 1939 (Ga. L. 1939, pp. 285-288) the General Assembly passed an Act dealing with several matters in connection with sentencing persons convicted of felonies and misdemeanors. This Act did not specifically repeal § 27-2501 of the Code of 1933, but § 2 of the Act has almost the identical wording of § 27-2501 except that the crime of robbery by force is added to the list of felonies not punishable as misdemeanors.
In 1964 (Ga. L. 1964, pp. 483-485) the General Assembly passed an Act repealing laws dealing with indeterminate sentences and providing that juries shall prescribe sentences for a specific number of years. In § 1 of this Act it is provided: "An Act approved March 24, 1939 (Ga. L. 1939, p. 285), otherwise known as Code section 27-2526, which provides for an indeterminate sentence in cases of felonies not punishable by life imprisonment is hereby repealed in its entirety." While obviously aimed at repealing only that section of the Act of 1939 providing for indeterminate sentences, this section plainly repeals the 1939 Act in its entirety. Section 5 of the 1964 Act provides as follows: "Nothing herein shall be construed to preclude either the jury or the judge from reducing the punishment for felonies to misdemeanors as provided by an Act approved March 24, 1939 (Ga. L. 1939, p. 285)."
The conflicting provisions of the 1964 Act present the questions: (1) Was the 1939 act repealed in its entirety? (2) If the act of 1939 was repealed, would § 27-2501 of the Code of 1933, which did not include the crime of robbery by force in the felonies which could not be punished a for misdemeanors, and which was repealed by implication by the 1939 Act, be restored to full effect?
"That all parts of a legislative enactment shall, if possible, be harmonized and so construed as to reconcile apparent conflicts and to give effect to the apparent intention of the lawmakers, is a cardinal rule in the construction of statutes." Cason v. Harn, 161 Ga. 366 (2) ( 131 S.E. 88). While § 1 and 5 of the 1964 Act (Ga. L. 1964, pp. 483-485) are conflicting, we are of the view that the legislative intent, as evidenced by the entire Act, was not to repeal § 2 of the 1939 Act (Ga. L. 1939, pp. 285, 287), dealing with the reduction of felony sentences to misdemeanors.
In this view of the legislative intent in the 1964 Act (Ga. L. 1964, pp. 483-485), the crime of robbery by force is included in those felonies which may not be punished as for misdemeanors, and the trial judge in the present case did not err in failing to charge the jury that they might recommend that the defendant be punished as for a misdemeanor.
Judgment affirmed. All the Justices concur, except Mobley, J., not participating for providential cause.