Thornton v. State
| Decision Date | 24 January 1978 |
| Docket Number | No. 3,No. 55102,55102,3 |
| Parties | Bernard THORNTON v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Proof of an assault on the victim by striking her with a gun in an attempt to rape her may form the basis for a conviction of kidnapping with bodily injury, and the same acts may also constitute aggravated assault, but it is impermissible in such case to sentence the defendant for both the assault and the higher grade of kidnapping.
The defendant was indicted, tried and convicted as a fourth offender under Code § 27-2511 of the offenses of kidnapping with bodily injury, aggravated sodomy and aggravated assault. The court first sentenced him to life imprisonment, and twenty years respectively, as a recidivist, but, it being called to his attention that kidnapping with bodily injury was a capital felony and as such not included within the statutory requirement that fourth offenders be given a maximum sentence without eligibility for parole, he vacated the sentence on the kidnapping count and resentenced the defendant to life imprisonment without reference to the recidivist statute. All sentences were to be served concurrently, the distinction being made that the kidnapping with bodily injury sentence might at a later date be subject to parole whereas the aggravated sodomy sentence would not.
The supporting evidence is to the effect that the defendant stopped a female pedestrian, forced her into his car at gunpoint, and after driving about for some time stopped in a deserted area and by holding her head down forced her to commit sodomy per os. She then tried to leave the car; he attempted to force her again and, not succeeding, jumped over the front seat of the car, pulled her into the back seat with him, and attempted intercourse. When she resisted he beat her on the back of the head with a pistol. She eventually was able to open the car door and escape. The defendant was picked up some days later and positively identified; he met previous descriptions which included having a tatoo in the shape of a heart on his left chest. The two enumerations of error on this appeal are directed against the sentencing procedure.
William S. Cain, Columbus, for appellant.
E. Mullins Whisnant, Dist. Atty., Richard C. Hagler, Asst. Dist. Atty., William J. Smith, Dist. Atty., Columbus, for appellee.
1. The defendant points out that under Clemmons v. State, 233 Ga. 187, 210 S.E.2d 657, it was held error to allow counts of the indictment alleging former convictions for the purpose of obtaining a maximum sentence to go out to the jury on a trial for rape, a capital felony not included in sentencing multiple offenders under Code § 27-2511. He then contends that it was error to submit these counts to the jury together since "he must be sentenced under the general recidivist statute...
To continue reading
Request your trial
-
Chambley v. State
...as a matter of fact. See Butler v. State, 239 Ga. 591(3), 238 S.E.2d 387 (1977); Bailey v. State, supra. See also Thornton v. State, 144 Ga.App. 595(2), 241 S.E.2d 478 (1978). Compare Annot., 43 A.L.R.3d 699, § 5(b), showing California and New York to be Since the kidnapping and the robbery......
-
Collins v. State
...764(1), 382 S.E.2d 715 (1989). While the crimes of kidnapping with bodily injury and rape may merge in fact, Thornton v. State, 144 Ga.App. 595, 597(2), 241 S.E.2d 478 (1978), in this case they did not do so. The force required as an element of rape can be mental as well as physical. "Conse......
-
Parrish v. State
...was not applicable to the capital felony count in no way affected its applicability to the non-capital count. Thornton v. State, 144 Ga.App. 595(1), 241 S.E.2d 478 (1978). Parrish was sentenced to serve 20 years for the armed robbery conviction; Wooten was sentenced to serve 15 years. Both ......
-
Jones v. State
...when the next was perpetrated upon the victim. Accord, Pryor v. State, 238 Ga. 698(1), 234 S.E.2d 918 (1977); Thornton v. State, 144 Ga.App. 595(2), 241 S.E.2d 478 (1978); Bruce v. State, 142 Ga.App. 211(1), 235 S.E.2d 606 (1977). Compare Williams v. State, 238 Ga. 244(7), 232 S.E.2d 238 (1......