Bennett v. State , 153 Ga. App. 210 ( 1980 )

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153 Ga. App. 210 (1980) 264 S.E.2d 688
BENNETT
v.
THE STATE.
58843.
Court of Appeals of Georgia.
Submitted November 5, 1979. Decided January 17, 1980. Rehearing Denied January 30, 1980.
Charles R. Sheppard, for appellant.

Richard E. Allen, District Attorney, for appellee.

CARLEY, Judge.

Appellant was indicted, tried and convicted of robbery by intimidation. The evidence for the state showed that appellant confronted the victim, a cashier in a convenience store, and stated "This is a stick-up." While no weapon was ever produced and no verbal threats to use a weapon were made, the testimony was that during the entire robbery appellant stood with his hands in his pockets and the victim "didn't know if he had a weapon or not, and [she] wasn't going to ask him to take it out of his pocket ... [since she] assumed he had a gun or a knife [and she] wasn't going to ask to see it." It was further established that when appellant was subsequently apprehended, on the day following the robbery, he had a knife in his coat pocket. Appellant urges that his conviction must be reversed because even though he was indicted for robbery by intimidation, a lesser included offense in armed robbery, and the evidence would not have supported a finding of armed robbery (Hicks v. State, 232 Ga. 393 (207 SE2d 30) (1974)), the judge erroneously *211 instructed the jury on armed robbery, a greater offense.

Charging on armed robbery was not reversible error in the instant case. "... [T]he appellant alleges the trial court erroneously charged on the greater offense of armed robbery ... [T]he thrust of the appellant's position here is that by so charging the trial court expressed an opinion as to a greater crime and the emphasizing of an offensive weapon.

"An appellant is required to show injury as a result of the alleged error. [Cits.] The trial court instructed on all types of robbery and no harm has been shown by the appellant since he has been convicted of robbery and not armed robbery." Hill v. State, 237 Ga. 794, 799 (5) (229 SE2d 737) (1976). Thus, since appellant's conviction is for robbery by intimidation and not armed robbery, the error is harmless.

Judgment affirmed. Deen, C. J., and Shulman, J., concur.