Allen v. State, s. 29046

• Decision Date: 18 November 1974
• Docket Number: 29047,Nos. 29046,s. 29046
• Citation: 233 Ga. 200,210 S.E.2d 680
• Parties: Jimmie Lee ALLEN v. The STATE. Charlie MACK v. The STATE. . Oct, 29, 1974. Rehearing Denied
• Court: Georgia Supreme Court

Page 680

210 S.E.2d 680

233 Ga. 200

Jimmie Lee ALLEN v. The STATE.

Charlie MACK v. The STATE.

Nos. 29046, 29047.

Supreme Court of Georgia.

Oct, 29, 1974.

Rehearing Denied Nov. 18, 1974.

Horton J. Greene, Alpharetta, for Allen.

Andrew J. Hairston, Atlanta, for Mack.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

NICHOLS, Presiding Justice.

Jimmie Lee Allen and Charles Mack were indicted and convicted on a multiple count indictment of rape and kidnapping. The evidence adduced upon the joint trial authorized a finding that Allen accosted a female and her male companion at about 8:30 p.m. while they were walking on a street in the City of Atlanta, Fulton County, Georgia, placed a pistol to the cheek of the male and forced them to walk to the corner of an intersection some two blocks away where Mack drove up in an automobile. At that point the female victim of the rape and kidnapping was forced into the automobile and driven to three separate locations where Allen and Mack each raped her at each location. She was then driven back to the general area where Allen first accosted her and she was there released. Her companion had reported the incident to the police who were waiting at her dormitory room when she arrived. She was immediately taken to a hospital where she was examined by a physician. Three or four days later she saw an automobile near her dormitory and recognized it from the make, color and a missing headlight. She recognized one of the defendants from his clothing and hat. This information was reported to the police. Three or four days later an automobile meeting the description was stopped after a high speed chase with both defendants therein. A pistol resembling the one used in the kidnapping and rapes was found under the front seat.

1. The evidence authorized the verdicts of guilty. Much of the appellants' argument concerning identification, etc. was decided adverse to the appellants' contentions by the jury. Such questions were questions for the jury; and where such findings were authorized by the evidence, they will not be disturbed on review by this court. Nor was the evidence objected to (the pistol) obtained as the result of an unlawful search of the defendant Mack's automobile.

2. "It has been held by this court many times that, when improper argument is made to the jury by an attorney for one of the parties, it is necessary, in order to make the same a basis for review, the opposing counsel make proper objection to it at the time made or invoke some ruling or instruction from the court respecting it, either by way or reprimanding counsel, or of instructing the jury to disregard it, or of declaring a mistrial. A party cannot during the trial ignore what he thinks to be an injustice, take his change on a favorable verdict, and complain later.' Joyner v. State, 208 Ga. 435, 438, 67 S.E.2d 221, 224; Cochran v. State, 213 Ga. 706, 100 S.E.2d 919.' Daniels v. State, 230 Ga. 126(2), 195 S.E.2d 900.

'It is well settled that an objection to the admission of evidence may not be raised for the first time on appeal. See Clenney v. State, 229 Ga. 561(3), 192 S.E.2d 907. Nor may an objection be raised on appeal where no objection was made during the trial to argument of counsel. See Hart v. State, 227 Ga. 171(3), 179 S.E.2d 346, and citations.' McAllister v. State, 231 Ga. 368(1), 202 S.E.2d 54.

Accordingly, the contention made for the first time in this court that the trial court erred in admitting evidence, although no objection was made, and that the trial court erred in not prohibiting the state's attorney from referring to such evidence in his closing argument, although no objection was made, presents nothing for review.

3. After the jury found both defendants guilty on both counts, the trial court directed the jury to sentence the defendants to life imprisonment on the kidnapping count of the indictment. The question of punishment on the rape count was then submitted to the jury. After the jury had deliberated for approximately an hour, the court withdrew such question from the jury and sentenced each defendant to a term of twenty years on the rape count to run concurrently with the life sentences.

Under decisions exemplified by Hensley v. State, 228 Ga. 501, 186 S.E.2d 729, and Smith v. State, 228 Ga. 293, 185 S.E.2d 381, there was no abuse...