Johnson v. State

• Court: Georgia Court of Appeals
• Writing for the Court: MARSHALL; BELL, C.J., and WEBB
• Citation: Johnson v. State, 213 S.E.2d 170, 134 Ga.App. 67 (Ga. App. 1975)
• Decision Date: 20 February 1975
• Docket Number: No. 50086,No. 1,50086,1
• Parties: William JOHNSON, Jr. v. The STATE

Page 170

213 S.E.2d 170

134 Ga.App. 67

William JOHNSON, Jr. v. The STATE.

No. 50086.

Court of Appeals of Georgia, Division No. 1.

Feb. 20, 1975.

Gardner, Eckhardt & Lee, Sherman Willis, Albany, for appellant.

William S. Lee, Dist. Atty., Robert E. Baynard, Asst. Dist. Atty., Albany, for appellee.

Syllabus Opinion by the Court

MARSHALL, Judge.

Appellant was tried and convicted by jury of two counts of aggravated assult, one count of carrying a concealed weapon and one count of carrying a pistol without a license. The trial judge imposed the sentence on the authority of the new Criminal Procedure Act, Ga.L.1974, p. 352 (Code Ann. § 27-2301), which provides: 'Upon a verdict of guilty the sentence shall be imposed by the judge, as provided by law.' The effective date of that new Code provision was July 1, 1974. Code Ann. § 102-111. The offenses involved in this case occurred on April 3, 1974, and the appellant was convicted and sentenced on July 18, 1974.

Appellant contends that the trial judge violated the Constitution (U.S. Constitution, Art. I, Sec. 9, Par. 3 (Code § 1-128); Georgia Constitution, Art. I, Sec. III, Par. II (Code Ann. § 2-302) 'No . . . ex post facto law, . . . shall be passed.') by applying Code Ann. § 27-2301 to a crime committed before the effective date of the Act, thus depriving him of his 'substantial right' to have his sentence determined by a jury. Held:

1. While this claim appears to have merit, at least as to the felony offenses (see Winston v. State, 186 Ga. 573, 198 S.E. 667; but see the last paragraph of Cofer v. Hopper, 233 Ga. 155, 210 S.E.2d 678, and Muckle v. State, 233 Ga. 337, 21 S.E.2d 361), we note that appellant registered no objection to being sentenced by the judge. This court cannot adjudicate a question that has not been properly presented to the lower court. ". . . A court of review is to correct errors of the lower court, and the judge in the lower court can not err as to a matter which he is not called upon to adjudicate.' Hamilton v. State, 169 Ga. 613, 616, 151 S.E. 17.' Nichols v. State, 111 Ga.App. 699, 700, 143 S.E.2d 41, 43. " A party can not during the trial ignore what he thinks to be an injustice, taking his chance on a favorable verdict, and complain later.' Joyner v. State, 208 Ga. 435(2), 67 S.E.2d 221.' Collier v. State, 223 Ga. 867, 868, 159 S.E.2d 73. This rule has been applied to objections pertaining to sentencing procedures raised for the first time on appeal. Bowman v. State, 231 Ga. 220(2), 200 S.E.2d 880; Young v. State, 125 Ga.App. 204(4), 186 S.E.2d 805 (constitutionality of Code section, Code Ann. § 27-2534, that allows the trial judge to fix punishment when the jury cannot agree within a reasonable time); Hensley v. State, 228 Ga. 501, 504(4), 186 S.E.2d 729 (admissibility during sentencing of a conviction which occurred prior to the sentencing act); Brackett v. State, 227 Ga. 493, 181 S.E.2d 380 (application of a sentencing Act to a crime committed before the effective date of the Act); Giles v. State, 67 Ga.App. 357(3), 20 S.E.2d 211 (illegality of the sentence imposed on accused). We deem the rule to be applicable to this case and, therefore, we can not pass on this enumeration.

2. Appellant contends that the evidence does not support the jury finding of guilty of carrying a concealed weapon. One of the victims was the only prosecution witness who observed where the appellant had the pistol just before the shooting. He testified that appellant 'put his...