Wallace v. State , 146 Ga. App. 21 ( 1978 )

146 Ga. App. 21 (1978) 245 S.E.2d 357

WALLACE
v.
THE STATE.

55666.

Court of Appeals of Georgia.

Submitted April 5, 1978. Decided May 12, 1978.

Jack H. Affleck, Jr., for appellant.

Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.

McMURRAY, Judge.

Defendant was indicted, tried and convicted for the offense of impersonating an officer (a police officer). He was sentenced to serve a term of four years. A motion for new trial was filed and denied. Defendant appeals. Held:

The sole enumeration of error complains of an objection by defense counsel to alleged improper argument by the assistant district attorney wherein he was arguing to the jury that the testimony of the alibi witnesses appearing for the defendant had been fabricated. However, the court ruled that counsel could argue to the jury as to what the jury could and should infer from the evidence as between the prosecuting witness who identified the defendant as the alleged detective who had trespassed into her apartment causing her to flee therefrom in fear in the early morning hours and that of the alibi witnesses which was in sharp conflict. The witnesses had been subject to vigorous cross examination. Consequently, the credibility of the conflicting witnesses for the state and the defendant was a matter for jury determination. Therefore, the strong argument to the jury by the assistant district attorney in his closing argument as to the similarity in the testimony of the alibi witnesses could be referred to by him, and he might submit, "that what they told you is fabricated." That some of the witnesses may not have told the truth was a permissible inference from the evidence. See Shy v. State, 234 Ga. 816, 824 (III) (218 SE2d 599) and cits. Further, defendant did not move for a mistrial or for the trial court to take any corrective action, counsel for the defense merely stating: "I think that's an improper argument." We cannot here say that the trial was infected with prejudice denying the defendant a fair trial by an impartial jury. See Pearley v. State, 235 Ga. 276, 278-279 (219 SE2d 404). There is no merit in this enumeration of error.

Judgment affirmed. Quillian, P. J., and Webb, J., concur.