Cain v. State

• Court: Georgia Court of Appeals
• Writing for the Court: BELL
• Citation: Cain v. State, 240 S.E.2d 750, 144 Ga.App. 249 (Ga. App. 1977)
• Decision Date: 15 November 1977
• Docket Number: No. 54601,No. 1,54601,1
• Parties: Jimmy E. CAIN v. The STATE

Page 750

240 S.E.2d 750

144 Ga.App. 249

Jimmy E. CAIN v. The STATE.

No. 54601.

Court of Appeals of Georgia, Division No. 1.

Nov. 15, 1977.

Rehearing Denied Dec. 5, 1977.

Robert T. Efurd, Jr., W. C. Dominy, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., Atlanta, for appellee.

BELL, Chief Judge.

Defendant was convicted of child molestation by the commission of an immoral and indecent act. Held :

1. It is urged that the state failed to prove that the offense took place within the 4-year statute of limitations. The period of limitations runs from the commission of the offense to the date of the indictment. Hall v. Hopper, 234 Ga. 625, 626, 216 S.E.2d 839. The indictment alleged that the offense took place on September 4, 1976, and was dated October 19, 1976. The date of the offense need not be proved with preciseness, but only that it occurred during the period of limitations. Pitts v. State, 124 Ga. 79(1), 52 S.E. 147. It may be established by circumstantial evidence. Tipton v. State, 119 Ga. 304(1), 46 S.E. 436. Here, the victim was eight years of age at the time of trial on December 8, 1976. She testified that an act which made out the crime was committed by defendant within her recent memory. This testimony, along with her testimony that defendant paid her for performance of an unnatural act and the testimony of the mother that the victim had a dollar that she had not given her daughter in September 1976, warrants the inference that the offense was committed within the statutory period. The evidence and all inferences drawn therefrom authorized the conviction.

2. The court ruled that the victim was a competent witness. No attempt was made by the defendant to question the victim as to her competency nor was objection made to the ruling as to witness' competency. Absent an objection, error, if any, as to her competency was waived. Colson v. State, 138 Ga.App. 366(5), 226 S.E.2d 154. The competency of a child as a witness is within the sound discretion of the court and its ruling will not be reversed absent an abuse of discretion. Lashley v. State, 132 Ga.App. 427, 429, 208 S.E.2d 200. We find no abuse here.

3. Defendant contends that the district attorney and court withheld material evidence offered by the victim's mother. There is no evidence that the state either had or withheld information. A post-trial affidavit of the victim's mother does not state that she told any facts either to the district attorney or to the trial judge, only that she told the judge's secretary that she did not believe the defendant should be sentenced. At the hearing on the motion for new trial the state requested that the witness be called to testify as to the "information" referred to in her affidavit and the defendant objected. Defendant cannot now be heard to complain.

4. On cross examination of defendant's character witness, it was shown that defendant had previously been convicted of burglary. No objection was made at the time and the lack of objection constitutes a waiver, regardless of whether or not the objection would have been valid if made. Ezzard v. State, 229 Ga. 465(2), 192 S.E.2d 374.

5. It is contended that the trial court erred in failing to charge the jury that in order to convict they must find that...