Walker v. State

225 Ga. 734 (1969)

171 S.E.2d 290

WALKER v. THE STATE.

25482.

Supreme Court of Georgia.

Submitted October 15, 1969.

Decided November 12, 1969.

Aaron Kravitch, for appellant.

Andrew J. Ryan, Jr., District Attorney, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, William R. Childers, Jr., Assistant Attorneys General, for appellee.

NICHOLS, Justice.

The defendant was indicted and convicted of the offense of robbery by force and sentenced to five years imprisonment. His amended motion for new trial was overruled and the present appeal filed. He enumerates as error the exclusion of two prospective jurors who stated that they would vote against the death penalty regardless of the evidence and that the evidence did not support the verdict. Held:

1. Where the sentence imposed in a capital felony case is not a death sentence it is no ground to set aside such sentence that prospective jurors who were opposed to capital punishment were excluded from service. Bumper v. North Carolina, 391 U.S. 543 (88 SC 1788, 20 LE2d 797); Clark v. Smith, 224 Ga. 766 (3) (164 SE2d 790); Curtis v. State, 224 Ga. 870 (165 SE2d 150).

2. The defendant in his unsworn statement admitted his presence at the scene of the alleged crime but denied the crime and contended that he was arrested after the victim had attempted to use force to remove him from the premises, a bar being managed by the victim.

The victim testified that after the defendant and two others entered the bar, ordered a fifth of wine, paid for and drank the same, that the defendant asked him for change for a five dollar bill which he gave him; that the defendant then grabbed at him, struck his chest and tore the pocket from his shirt while removing the money (approximately $63) from his person, and that a struggle ensued which continued until the police arrived. "`Force,' in the sense in which it is used in defining the offense of robbery, consists in personal violence or that degree of force that is necessary to remove articles so attached to the person or clothing as to create *735 resistance, however slight. 2 Bishop's Criminal Law, § 1167." Barksdale v. State, 24 Ga. App. 115 (2) (100 SE 45), quoted approvingly in Henderson v. State, 209 Ga. 72, 74 (70 SE2d 713).

The evidence authorized the verdict.

Judgment affirmed. All the Justices concur.