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Lawskills.com Georgia Caselaw
MCKENZEY v. THE STATE.
46857.
CLARK, Judge.
Credit card theft. Fulton Superior Court. Before Judge Shaw.
Defendant-appellant appeals from a judgment of conviction and sentence for the felony offense of credit card theft.
1. The defendant moved for a directed verdict (see Code Ann. 27-1802; Ga. L. 1971, pp. 460, 461) contending the State had failed to prove the case as alleged in the indictment and had not shown any intent on the part of defendant to commit a crime or that he had committed a crime. The denial of this motion is enumerated as error.
The indictment charged defendant with acts which are made a crime by statute. Code Ann. 26-1705.2 (1); Ga. L. 1969, pp. 128, 130. There was evidence to support the allegations of the indictment. The question of the defendant's intention was a matter the jury was authorized to find from the evidence relating to defendant's actions and conduct. Cole v. State, 118 Ga. App. 228 (163 SE2d 250); Johnson v. State, 9 Ga. App. 409 (3) (71 SE 507); former Code 26-202. The evidence did not demand a verdict of acquittal and the trial court did not err in denying the motion therefor.
2. At the close of the State's case the defendant made a motion for a mistrial "based on the State's witness having injected into the trial the fact of possibly another crime and alleging somewhat that this defendant may have had something to do with that crime and I feel it has prejudiced the minds of the jury to such an extent that a mistrial should be directed."
It appears from appellant's brief that he is referring to testimony by Covington that the card had been taken when his home had been burglarized.
Even under the "other crimes" inhibition (see Bacon v. State, 209 Ga. 261 (71 SE2d 615)), this objection is not good because the evidence was sufficient to authorize an inference that the credit card was taken in the course of a burglary. Evidence as to the burglary is therefore admissible as a part of the res gestae, which is one of the exceptions to the rule. Hill v. State, 161 Ga. 188 (129 SE 647); Swain v. State, 162 Ga. 777 (135 SE 187); Bradberry v. State, 170 Ga. 859 154 SE 344); Randall v. State, 176 Ga. 897 (169 SE 103); Reed v. State, 197 Ga. 418 (29 SE2d 505); Hill v. State, 201 Ga. 300 (39 SE2d 675); Hall v. State, 7 Ga. App. 115 (66 SE 390).
3. The court also denied a motion for mistrial made by appellant during the State's argument in the sentencing phase of the case. The motion was made on the ground that the State was arguing that the credit card was stolen during a burglary. We do not have the text of the actual remarks in the record and we will not assume the trial court abused the wide discretion it has in passing on motions for mistrial. Furthermore, as we have pointed out above, the State was authorized to prove, if it could, that the defendant had taken the card from Covington's home. Argument of counsel based on deductions or inferences from evidence is permissible. Ingram v. State, 97 Ga. App. 468 (6) (103 SE2d 666); O'Bryant v. State, 222 Ga. 326, 328 (149 SE2d 654). No error has been made to appear.
Parker, Parker & Rary, J. C. Rary, Lewis M. Groover, Jr., for appellant.
SUBMITTED JANUARY 6, 1972 -- DECIDED FEBRUARY 17, 1972.
Friday May 22 14:56 EDT


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