Talley v. State, 51569
| Decision Date | 23 January 1976 |
| Docket Number | No. 2,No. 51569,51569,2 |
| Citation | 137 Ga.App. 548,224 S.E.2d 455 |
| Court | Georgia Court of Appeals |
| Parties | J. A. TALLEY, Jr. v. The STATE |
Kenneth L. Gordon, Hogansville, for appellant.
William F. Lee, Jr., Dist. Atty., Newnan, for appellee.
Appellant was convicted of aggravated assault, robbery, and child molestation and sentenced to a total of 50 years in the penitentiary. In his appeal, he enumerates five errors: (1) the general grounds, (2) the identification of appellant by the victim by use of a single photograph prejudicially tainted her identification of him at a subsequent line-up and at trial, (3) the line-up was impermissibly suggestive, (4) two photographs were improperly admitted into evidence, and (5) conflicts in the state's evidence so undermined the testimony of the witnesses as to destroy their credibility.
1. In Enumeration 1, appellant contends that the evidence is insufficient generally as to all three counts and particularly as to the assault and robbery counts. The transcript shows that on the night of July 12, 1975, a 12-year-old girl was spending the night with her 76-year-old grandfather in his house in LaGrange. She testified that in the early morning hours of July 13 she was awakened by a noise and saw a black male hitting her grandfather on the head with a lamp. When the assailant saw the girl, he demanded money and a pistol. She replied they had neither, at which time he attempted to remove a watch from the wrist of her grandfather. When the grandfather resisted, the assailant began to stab him with a knife. He then took the girl into another room and told her to take her panties off and, under threat of the knife, he molested her. In an effort to avoid further molestation, she suggested that she get the watch from her grandfather and give it to him. She then left the room obtained the watch from her grandfather and brought it to the assailant who then left. The girl immediately called the police, and was able later to identify the appellant as the assailant by means of a photograph and at a line-up. The grandfather could not identify the assailant but did identify his watch when it was shown to him by policemen. The watch had been recovered by the police from a pawn shop where it had been pawned by appellant. Appellant testified that he had been out drinking on the night of the 12th and was at a friend's house asleep during the early morning when the crimes were actually committed. He stated that he had bought the watch from a stranger during the night of the 12th and had pawned it a day or two later when he became short of cash.
It is appellant's contention that the above evidence is insufficient to show: (a) the commission of any of the offenses because the only evidence connecting him with the crimes was the questionable identification by a 12-year-old girl and a watch pawned by appellant which only 'looked like' the watch stolen and which appellant may have obtained from a stranger, (b) the commission of aggravated assault because the lamp was not shown to have been used as a deadly weapon, and (c) the commission of a robbery because the watch was taken from the grandfather, not by appellant, but by the girl.
( a) The sufficiency of the evidence as to all three crimes is not diminished by the fact that the identification of appellant by the girl was impermissibly suggested by an improper photograph display (see Division 2, infra) nor by the fact that the watch only 'looked like' the grandfather's watch and may have been a different watch and may have been acquired innocently by appellant. Hess v. State, 132 Ga.App. 26, 28, 207 S.E.2d 580, 582. While the appellant's alibi and explanation of how he happened to have the watch may warrant the jury's consideration, they do not require the jury to find in his favor where they have no reasonable doubt of his guilt.
( b) As to the conviction of aggravated assault, the evidence is sufficient to show that the lamp was used as a deadly weapon. Appellant was charged with assaulting the grandfather 'with a lamp, a deadly weapon in the manner used . . .' A lamp is not, per se, a deadly weapon within the meaning of Ga.L.1968, pp. 1249, 1280 (Code Ann. § 26-1302). It was, therefore, incumbent on the state to show the circumstances of its use by appellant which made it a deadly weapon. See, e.g., Williams v. State, 127 Ga.App. 386(1, 2), 193 S.E.2d 633. In this respect, the state's case was weak, though not fatally so. The state did not introduce the lamp into evidence. Nor was the jury informed of the lamp's size, weight or sharpness nor the number of blows struck, the degree of force used, or what portion of the lamp inflicted the wounds. The absence of such evidence resulted in reversal in the Williams case, supra, where shoes were allegedly used as a deadly weapon. Here, however, the testimony of the girl who saw the appellant 'hitting him (the grandfather) on the head with the lamp,' plus the medical testimony and photographs of severe lacerations ('The ear was torn completely in two (sic) in two places.') and bruises were sufficient indication of the severity of the blows to show the lamp was used as a deadly weapon. See Quarles v. State, 130 Ga.App. 756, 204 S.E.2d 467.
( c) As to the robbery, the indictment charged appellant with robbery of property (including the watch) from the girl and her grandfather. Therefore, even though the girl actually took the watch from her grandfather, the appellant took the watch from the girl under threat of harm. The evidence was sufficient to support this count of the indictment.
2. Appellant contends that the girl's identification of him was tainted by a prior improper photographic display. Immediately after the offense, the girl gave a description of the assailant...
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