Halm v. State , 125 Ga. App. 618 ( 1972 )

125 Ga. App. 618 (1972) 188 S.E.2d 434

HALM
v.
THE STATE.

46902.

Court of Appeals of Georgia.

Submitted February 1, 1972. Decided March 2, 1972.

Roger E. Douglas, H. B. Edwards, III, for appellant.

George A. Horkan, Jr., District Attorney, for appellee.

QUILLIAN, Judge.

The defendant was tried and convicted of the offense of escape. An appeal was filed and the case is here for review. Held:

1. The first enumeration of error contends that the State placed the defendant's character in issue when the district attorney asked the warden of the prison camp if he would recommend the defendant as a "trusty." The defense attorney had previously examined the same witness about the same subject matter and therefore the admission of the evidence was not error. Code Ann. § 38-1713 (Ga. L. 1971, p. 460) is not applicable since here the complaining party first introduced evidence in regard to the matter to which he subsequently interposed an objection.

2. The appellant argues that the trial judge erred in charging the jury, in the pre-sentencing phase of the trial, that they should determine whether the defendant escaped while in possession of a dangerous weapon. The charge was correct because the possible punishment to be imposed for escape is different when the escape is made while in the possession of a dangerous weapon than it is when there is no possession of such weapon. Code Ann. § 26-2501 (Ga. L. 1968, pp. 1249, 1312).

3. One of the appellant's enumerations of error contends that a notice the appellant sent to the State Board of Corrections requesting a final disposition of the escape charge had the same effect as a demand for trial. Code § 27-1901. The Supreme Court has held contrary to this position in Spurlin v. State, 228 Ga. 2 (1) (183 SE2d 765).

4. The appellant contends that he should have been allowed to have the opening and concluding arguments at the pre-sentence hearing phase of the trial. No objection was made during the course of the trial and therefore the enumeration of error is without merit. Spence v. State, 96 Ga. App. 19 (2) (99 SE2d 309).

5. The remaining enumerations of error are without merit.

Judgment affirmed. Hall, P. J., and Pannell, J., concur.