Mathis v. State

In my opinion the conviction of robbery was a lesser included offense of murder under the facts of this case and that conviction should be set aside.

Whether robbery is a lesser included offense in the crime of malice murder depends on the facts of the case.

In Barrow v. State, 235 Ga. 635, 637 (221 SE2d 416) (1975); Dobbs v. State, 236 Ga. 427, 433 (224 SE2d 3) (1976); and Fleming v. State, 236 Ga. 434, 435 (224 SE2d 15) (1976); in which this court held that robbery was not a lesser included offense of the offense of malice murder, the appellant was the person shooting the victim. In Duhart v.…