Summary
In Head v. State, 235 Ga. 677, this court held that the conviction of carrying a pistol without a license should be reversed because the state did not introduce evidence showing that the appellant did not have a license for the pistol "from the ordinary (probate judge) of the county in which he resides."
Summary of this case from Todd v. StateOpinion
30382.
SUBMITTED OCTOBER 3, 1975.
DECIDED DECEMBER 3, 1975.
Armed robbery. Fulton Superior Court. Before Judge Williams.
Jack Dorsey, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, Arthur K. Bolton, Attorney General, Kirby G. Atkinson, Staff Assistant Attorney General, for appellee.
This is a criminal case involving convictions in Fulton Superior Court for armed robbery, carrying a concealed weapon and carrying a pistol without a license. Appellant received sentences totaling 20 years and 24 months for the three offenses and, after his motion for a new trial was overruled in the trial court, he filed this appeal.
The state's case rested primarily upon the victim's identification of appellant at a lineup as one of several people who robbed her at gunpoint in her home. Appellant's defense, corroborated by a number of witnesses, was that of alibi. The trial court, after hearing evidence outside the jury's presence, concluded the lineup had been fairly conducted.
Appellant's sole contention regarding the lineup is that the state failed to show it was fair and impartial. On this basis appellant argues that the victim's testimony about the lineup identification should have been suppressed.
The transcript shows the victim had a good opportunity to become familiar with appellant's features by viewing him for approximately 30 minutes at close range in well-lighted rooms. The description she gave the police after the crimes fit appellant. The lineup was conducted only a week after the crimes were committed and the other seven men in the lineup with appellant were of the same race, and, generally, the same height and age, as appellant. The victim unhesitatingly identified appellant as one of the robbers. The evidence amply satisfies the standards required for fair and impartial lineups. See Neil v. Biggers, 409 U.S. 188, 198 ( 93 S.C. 375) (1972); Hobbs v. State, 235 Ga. 8, 9 ( 218 S.E.2d 769) (1975); Sherwin v. State, 234 Ga. 592, 593 ( 216 S.E.2d 810) (1975); and Yancey v. State, 232 Ga. 167, 169 ( 205 S.E.2d 282) (1974).
Appellant also argues the trial court erred in restricting his voir dire examination of a prospective juror in violation of Code Ann. § 59-705. Defense counsel asked a prospective juror if he heard a story given by the assistant district attorney when a man pleaded guilty to kidnapping in another case earlier that day and wanted to know what the juror thought about it. The state objected to the question and the trial court sustained the objection. This was not error. See Whitlock v. State, 230 Ga. 700, 706 (5) ( 198 S.E.2d 865) (1973), and Reynolds v. State, 231 Ga. 582, 583 (2) ( 203 S.E.2d 214) (1974).
Another issue on appeal is whether the trial court erred in overruling defense counsel's objection to cross examination by the state of two of appellant's alibi witnesses on whether prior to trial they had informed anyone in law enforcement about the matters to which they had testified, to wit, placing appellant at a party elsewhere at the time of the crimes. This was permissible cross examination touching the credibility of these witnesses. See Code Ann. §§ 38-1705 and 38-1805; Long v. State, 205 Ga. 257 (5) ( 53 S.E.2d 365) (1949); and Thompson v. State, 181 Ga. 620 (1) ( 183 S.E. 566) (1936).
The evidence relating to the offenses of armed robbery and carrying a concealed weapon was sufficient to create issues for the jury's decision and the verdicts of guilty for these two offenses were authorized and will be affirmed. Merino v. State, 230 Ga. 604 ( 198 S.E.2d 311) (1973). However, the state introduced no evidence which shows appellant did not have a license for the pistol "from the ordinary [probate judge] of the county in which he resides." Code Ann. § 26-2903. Therefore, the trial court's judgment of conviction and 12-month sentence for this offense must be reversed. See Coats v. State, 234 Ga. 659, 662 ( 217 S.E.2d 260) (1975); Daniels v. State, 234 Ga. 523, 525 ( 216 S.E.2d 819) (1975); and Freeman v. State, 233 Ga. 678 ( 212 S.E.2d 847) (1975). See also Johnson v. Wright, 509 F.2d 828, 830 (7) (5th Cir. 1975). Those cases, exemplified by Johnson v. State, 230 Ga. 196, 200 ( 196 S.E.2d 385) (1973), and Ezzard v. State, 229 Ga. 465 (3) ( 192 S.E.2d 374) (1972), which hold that whether an accused has a license to carry a pistol is a matter of defense and is not an element of the offense, are hereby overruled.
Cert. den. December 8, 1975. 44 USLW 3344.
Judgment affirmed in part; reversed in part. All the Justices concur, except Nichols, C. J., Undercofler, P. J., and Jordan, J., who dissent.