Defendant contends the trial court erred in allowing the defendant to be indicated and convicted under Code Ann. § 27-2511, supra, in that this statute is inapplicable in capital felony cases. See Clemmons v. State, 233 Ga. 187 ( 210 S.E.2d 657). The question for determination in the case sub judice is whether, for purposes of application of Code Ann. § 27-2511, rape is now a capital felony. "[C]apital felony" has been defined as "merely descriptive of those felonies to which the death penalty is affixed as a punishment under given circumstances to distinguish such felonies from that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same."
We find no waiver of the right in this case, nor are we persuaded by the State's argument that any error committed by the court was harmless. See Clemmons v. State, 233 Ga. 187 ( 210 S.E.2d 657) (1974). Once the trial court accepted appellant's guilty plea to possession of a firearm by a convicted felon, thereby removing this issue from the jury's consideration, the proper course of action would have been to keep appellant's prior criminal record from the jury's knowledge while they deliberated on the murder charge.
Riggins v. Stynchcombe, 231 Ga. 589, 593 ( 203 S.E.2d 208) (1974); Cofer v. Hopper, 233 Ga. 155, 156 ( 210 S.E.2d 678) (1974). Clemmons v. State, 233 Ga. 187 ( 210 S.E.2d 657) (1974) regarding capital felonies is inapposite. Robbery by intimidation is not a capital felony. 4. Two accomplices testified against the appellant.
The only specific argument under these enumerations is that the evidence was insufficient because there was no corroboration of the victim's identification of appellant. "This court has consistently held that only the fact of commission of the crime of rape must be corroborated by other evidence and that corroborating identification evidence is not necessary." Clemmons v. State, 233 Ga. 187 ( 210 S.E.2d 657) (1974). The evidence was sufficient, and the denial of a directed verdict was not error.
Fore v. State, 237 Ga. 507, 508 ( 228 S.E.2d 885). The indictment was purged to delete such information before being given to the jury and the recidivist count became relevant only in the event of conviction. See Clemmons v. State, 233 Ga. 187 ( 210 S.E.2d 657). Defendant's reliance upon Curry v. State, 248 Ga. 183 ( 281 S.E.2d 604), is misplaced. There, the defendant was indicted "for additional crimes" after the jury was unable to reach a verdict at the first trial.
Code Ann. § 27-2511 is, by its own terms, inapplicable to "a capital felony." Clemmons v. State, 233 Ga. 187 ( 210 S.E.2d 657). But, rape is no longer a capital felony.
We agree with the defendant that Code Ann. § 27-2511 does not apply to capital felonies. Clemmons v. State, 233 Ga. 187, 188 ( 210 S.E.2d 657). However, the offense charged against the defendant — armed robbery, is no longer a capital felony.
That procedure has long been required in this state. Clemmons v. State, 233 Ga. 187 ( 210 S.E.2d 657). 6. Appellant contends without supporting authority that the trial court committed reversible error by permitting the state to provide each juror with a copy of the indictment and with a note pad.
"[The Supreme Court] has consistently held that only the fact of commission of the crime of rape must be corroborated by other evidence and that corroborating identification evidence is not necessary." Clemmons v. State, 233 Ga. 187, 188 ( 210 S.E.2d 657) (1974). 2.
DEEN, Presiding Judge. 1. The defendant points out that under Clemmons v. State, 233 Ga. 187 ( 210 S.E.2d 657), it was held error to allow counts of the indictment alleging former convictions for the purpose of obtaining a maximum sentence to go out to the jury on a trial for rape, a capital felony not included in sentencing multiple offenders under Code § 27-2511. He then contends that it was error to submit these counts to the jury together since "he must be sentence under the general recidivist statute for each and every count in the indictment or not be sentenced under the statute at all."