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Armed robbery. Fulton Superior Court. Before Judge Alverson.
Noble Atlas Spaulding was convicted of armed robbery and aggravated assault. He was sentenced to serve 15 years and five years imprisonment respectively to run concurrently. He appeals from these convictions. Held:
The husband of the victim then turned off the motor of the Volkswagen. They found their tape recorder in the Volkswagen. A wallet and address book was also found in the vehicle.
The fingerprints of the appellant were found on the can of beer which had been left in the victim's apartment by the appellant.
The appellant testified that his Volkswagen was stolen on the day of the robbery, March 13, 1973, about 8:00 a.m., that the car keys were in it, that he had never seen the wallet or the address book which had been found in his car; that the wallet and address book both contained his telephone number and that of his girl friend; that he was at the home of his girl friend from 8:00 a.m. that day until 10:00 a.m. when he left to play football; and that he injured his hand playing football. The appellant reported on March 14, 1973, to the police that his car had been stolen the previous day.
The evidence was sufficient to support the verdict and the motion for new trial based on the general grounds is without merit.
2. When the appellant was at the police station reporting the theft of his automobile, the victim was called to the station and identified him as one of the perpetrators of the robbery. The appellant contends that his constitutional rights were denied him in the identification procedure. We do not agree. The identification at the station was made by the victim before the appellant was indicted or even arrested. Kirby v. Illinois, 406 U. S. 682 (92 SC 1877, 32 LE2d 411).
The evidence also shows that the in-court identification of the appellant had an origin independent of the complained of identification confrontation. Mathis v. State, 231 Ga. 401 (6) (202 SE2d 73).
3. The appellant contends that he is 21 years of age and is entitled to be tried by a jury composed of his peers. He contends his age group was not represented on the jury. There is no merit in this contention.
The fact that no one 21 years of age was on the jury, standing alone, does not prove that there were no jurors of that age in the jury box; nor does it show a deliberate exclusion of such persons from jury service. No evidence was offered to prove the jury list was not a fairly representative cross section of the intelligent and upright citizens of the county. Treadwell v. State, 129 Ga. App. 573 (1) (200 SE2d 323); Code Ann. 59-106 (Ga. L. 1953, Nov. Sess., pp. 284, 285; 1955, p. 247; 1967, p. 251; 1968, p. 533; 1973, pp. 484, 485).
The appellant contends that this instruction to the jury destroyed his right to a fair and impartial jury in violation of the Sixth and Fourteenth Amendments of the Federal Constitution (Code 1-806, 1-815) because it was calculated to unduly impress and influence the jury to reach a verdict without sufficient time for deliberation and determination of the issues on these felony charges; that it destroyed his rights to have his case decided by an impartial jury in that it was an unnecessary invasion into the jury's deliberation where no reason appeared for it except to urge the jury to arrive at a quick verdict without proper consideration for the individual opinions of the separate jurors; that the recharge implied that the jury had not made an examination of "issues and nature" called for; that the deliberation, opinions and judgments of the individual jurors who were in the minority were inaccurate, and that the issues and questions should be re-examined and a different judgment formed in conformity with the majority; and that the recharge had the effect of discouraging each individual juror from having, maintaining, and expressing his own opinion and tended to cause him to yield it to that of others which prevented free and conscientious deliberation by individual jurors.
The recharge of the court in this case did not violate the appellant's constitutional rights under the Sixth and Fourteenth Amendments of the Federal Constitution. For a detailed analysis of this charge, see Ponder v. State, 229 Ga. 720 (2) (194 SE2d 78); Yancy v. State, 173 Ga. 685, 689 (160 SE 867); Hyde v. State, 196 Ga. 475 (8) (26 SE2d 744); Ratcliff v. Ratcliff, 219 Ga. 545 (134 SE2d 605).
Johnson & Bostic, Harris C. Bostic, for appellant.
SUBMITTED MAY 17, 1974 -- DECIDED JUNE 18, 1974.
Friday May 22 12:29 EDT

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