Opinion
33336.
DECIDED JANUARY 25, 1951.
Robbery by force; from Chatham Superior Court — Judge Atkinson. September 26, 1950.
Emanuel Lewis, John J. Sullivan, for plaintiff in error.
Andrew J. Ryan Jr., Solicitor-General, Sylvan A. Garfunkel, Herman W. Coolidge, contra.
The court did not err in overruling the motion for a new trial on either the general or the special grounds.
DECIDED JANUARY, 25, 1951.
The defendant, Miles Ted Mixon, was convicted on two indictments charging him with robbery. One indictment charged him with robbing the employees of the Comet Filling Station on March 2, 1950; the other indictment charged him with robbing the employees of the Spur Service Station on February 25, 1950. He was tried on both indictments at the same time. The indictment also charged two persons, Joseph V. Broome and Robert J. Cox, with the defendant. Broome and Cox pleaded guilty. The jury were authorized to believe that the robbery at the Comet Filling Station was perpetrated by three men and one woman. Broome and Cox were identified as the two men who went into the filling station. One of them had a pistol and held it on the man who was in charge of the station during the robbery. Detective Bass of the City of Savannah, stated that Mixon voluntarily admitted that he was in on this robbery. The loot was split four ways as between Broome, Cox, the defendant, and Mrs. Edwards. Mixon also admitted that it was his pistol that was used on the job. Mrs. Edwards admitted, at the suggestion of and in the presence of Detective Bass and Mixon, the details of the robbery and told where they had disposed of the other things that were taken besides the money. Among the other articles besides the money was a money belt, which they had thrown into a manhole. The officers found this belt where Mrs. Edwards said it could be found. A 38-caliber pistol was found in the defendant's dresser drawer in his room, and he admitted that that was the pistol that was used in the Comet Filling Station robbery and in the Spur Service Station robbery. The jury were authorized to find as to the Spur Service Station robbery, that Broome and Cox and the defendant went to that place, and Broome and Cox posed as hitchhikers while the defendant remained in the get-away car, just outside. There was evidence to the effect that the reason the defendant did not enter the store was that he had been previously employed at the Spur Service Station, and did not enter because he feared he would be identified by some of the employees there at the time. After the robbery the three of them drove away in the car Mixon was operating. The evidence further shows that Broome made a statement to police officer Thornton in the presence of the defendant, that he, Broome, Cox and Mixon committed the robbery at the Spur Service Station. The defendant made an amended motion for a new trial, which was overruled. On this judgment error is assigned here.
(1) The evidence, so far as the general grounds are concerned, is amply sufficient to sustain the verdict, although some portions of it are in sharp conflict with the evidence of the defendant and his statement. Broome denied what officer Thornton stated Broome told him. He denied that he had made any confession at all to either Thornton or Bass, or to anyone else and stated that he had no connection with either of the robberies and had several witnesses to testify that he had denied it to them. Counsel for the defendant does not argue the general grounds and does not contend that the evidence is insufficient to sustain the verdict, although he does not admit that it is.
(2) There are two special grounds: 1. Because of the admission, over objection of counsel, of evidence which was injected into the trial of the case by the solicitor-general for the purpose of introducing into evidence the character of the defendant when it had not been put into issue. The solicitor propounded to Jack Cox, a witness for the defendant, on cross-examination, the question "When did you first meet movant?" The jury was excluded upon motion of counsel for the defendant and the solicitor explained that he wanted the evidence in the records for the purpose of impeaching Cox as to where the defendant was at certain periods of time. In this connection the witness, Cox, responded that he first met movant when "one Clark was trying to get Mixon out of the `pen.'" Whereupon the court ruled that, in his opinion, the evidence was admissible for other purposes under the record of the case. The judge, in passing on this ground, stated that, in his opinion, under the record, the evidence was relevant for certain purposes and he would not exclude it because it incidentally showed that at the time the witness, Cox, became acquainted with the defendant, the defendant was in the "pen." In McClung v. State, 206 Ga. 421 (1) ( 57 S.E.2d 559), the Supreme Court said: "Where evidence is relevant, for the purpose of showing flight or to explain conduct and ascertain motives, it will not be excluded because it incidentally shows the commission of another crime." In Gossett v. State, 203 Ga. 692 (3-a) ( 48 S.E.2d 71), the Supreme Court said: "Evidence of the commission of one crime is not admissible on the trial of the defendant for another crime, where the sole purpose is to show that the defendant is guilty of such other crime." See also Farlow v. State, 59 Ga. App. 881 ( 2 S.E.2d 500). Under the record of this case the assignment of error in this special ground does not require a reversal.
2. The second special ground complains of an argument made by the solicitor-general to the effect that "He [meaning the defendant] was going around with a pistol." Counsel for the defendant objected to this on the grounds that there was no evidence that the defendant was carrying the pistol, whereupon the solicitor-general stated, "If I said he was carrying a pistol, then I withdraw it. It was his pistol." The judge stated that he could not pass on the evidence, but if there was no evidence to sustain the statement made by the solicitor, the jury should disregard it. The evidence showed that the pistol used in the Comet Filling Station robbery and in the other station robbery was the pistol of the defendant, and he so admitted this to the officers. This special ground is without merit.
The court did not err in overruling the assignments of error in these special grounds.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.