
    15878.
    Killabrew v. The State.
    Decided November 12, 1924.
    Indictment for attempt to rob; from Fulton superior court-judge J..E. Thomas. August 5, 1924.
    ' The contention of counsel for the accused, in their brief in the Court of Appeals, was that he “could not have been legally convicted of anything more than an attempt to commit robbery by intimidation.” The prosecutor testified: “I have a grocery store. .. . I was held up in January this year by . . the defendant Ed Killabrew and two other negroes. . . They stopped by the store. One of them said, ‘Boss, have you got any cheese ?’ . . He said he would take a half a pound. I went to the block and cut a half pound and wrapped it up. He said, ‘How much is this?’ I said, T will let you have it for seventeen cents.’ . . He put his hand in his pocket. The counter is about as wide as to the other side of this table. He put his hand in his pocket and said, ‘Keep your mouth shut.’ I did not know what I could do. I had a pistol. I always carry it at night-time. I just brought my arm around by the register, by the scale, and at the same time I dropped down, made like I fainted. I tried to get behind the counter. Every one of them was about five feet apart. One was in the door, one was in the middle, and one was right in front of the scales. One of them tried to get to the register. When I was lying on the floor I got my pistol and shot one time. When I shot one time two of them ran away. This one tried to get back again, and he fell. I went outside and shot again. I shot once in the store and three times outside after him. This is the one right here that pointed the pistol at me. He tried to go to the door. The middle one went to the register. When I shot the pistol two of them got out. When those two got out he tried to get out too. After the defendant said for me to put up my hands and pointed the pistol at me he didn’t say nothing else but just, ‘Keep your mouth shut.’ The middle, boy was trying to go to the register -when I was lying on the floor. I mean he was going toward the cash register, the place where I kept my money. It is a long way to go around the counter. To the cash register must be four feet. You have to go all around the counter. . . I did not pay particular attention to them while I was waiting on them. The first thing I knew one of them had a gun on me. When he threw the gun on me I went behind the counter. I was standing there five minutes. I did not look at his face after I fell down.”
   Broyles, C. J.

Under the facts of this case, the verdict finding- the accused guilty of an attempt to rob “by force and violence” was unauthorized, and the court erred in overruling- the motion for a new trial. See, in this connection, Barksdale v. State, 24 Ga. App. 115 (100 S. E. 45); Tanner v. State, 24 Ga. App. 132 (100 S. E. 44), and citations; Penny v. State, 114 Ga. 77 (39 S. E. 871); Groves v. State, 116 Ga. 516, 519 (42 S. E. 755, 59 L. R. A. 598); Moss v. State, 6 Ga. App. 525 (65 S. E. 300); Leverett v. State, 20 Ga. App. 748 (93 S. E. 232); Wilburn v. State, 22 Ga. App. 614 (97 S. E. 87).

Judgment reversed.

Luke and Bloodworlh, JJ., eoneur.

The defendant attempted to establish an alibi.

The trial judge, in overruling the motion for a new trial, said: “It appearing from the record that said defendant and two companions entered the place of business of the prosecuting witness, that one of them called for some article, representing that he wished to purchase it; that the defendant Ed Killabrew then covered the prosecuting witness with a pistol, while his two companions attempted to get to the cash register where the money was kept for the purpose of entering said cash register and taking the money therein contained away by force, it is the judgment of the court that these acts constitute the offense of attempt to commit- robbery by force.”

Branch & Howard, Eugene L. Tiller, for plaintiff in error,

cited 1 Ga. App. 136.

John A. Boylcin, solicitor-general, B. A. Stephens, Ralph II. Pharr, contra,

cited the cases cited in the decision; also 66 Ga. 167; 125 Ga. 259 (2); 111 Ga. 832 (2), 95 Ga. 481.  