Frazier v. State ( 1979 )

152 Ga. App. 743 (1979) 264 S.E.2d 34

FRAZIER
v.
THE STATE (two cases).

58935, 58936.

Court of Appeals of Georgia.

Submitted November 6, 1979. Decided December 5, 1979.

Vernon S. Pitts, Jr., for appellant.

Steve Frazier, pro se.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. Michael Whaley, Assistant District Attorneys, for appellee.

DEEN, Chief Judge.

Technically, both appeals of this defendant from a conviction for rape are untimely. One, a pro se, appears on its face to have been filed more than a month after the verdict and judgment, although its date is prior thereto. No motion for new trial is recited. The other, wherein the defendant is represented by counsel, was filed 32 days after the overruling of a motion for new trial. In an effort to make sure, however, that no miscarriage of justice has occurred, we have examined the record and make the following findings:

1. "A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration." Sappington v. Bell, 115 Ga. 856 (42 S.E. 233) (1902). The rule applies to criminal as well as civil cases. Deese v. State, 137 Ga. App. 476, 477 (224 SE2d 124) (1976); Echols v. State, 87 Ga. App. 399 (3) (74 SE2d 128) (1953). This defendant was tried on a three-count indictment charging him with rape, sodomy and robbery. He was convicted of rape and acquitted of the other two counts. The verdict was not repugnant although it involved a determination by the jury to believe the evidence of the prosecutrix that the intercourse took place without her consent while finding on the sodomy count either that the act had not taken place or that it had taken place with the consent of the prosecutrix, who testified to the contrary.

2. As to the rape, the act itself was testified to by both parties, the only question for jury decision being whether it occurred with or without the consent of the victim. The evidence of lack of consent was ample.

Judgment affirmed. Shulman and Carley, JJ., concur.