Lumpkin v. State , 228 Ga. 391 ( 1971 )

228 Ga. 391 (1971) 185 S.E.2d 770

LUMPKIN
v.
THE STATE.

26830.

Supreme Court of Georgia.

Submitted November 9, 1971. Decided November 18, 1971.

Glenn Zell, for appellant.

Lewis R. Slaton, District Attorney, Joel M. Feldman, Carter Goode, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, William F. Bartee, Jr., Assistant Attorneys General, for appellee.

NICHOLS, Justice.

This appeal arises from a conviction of rape and sentence to life imprisonment. Enumerated as error are the admission of evidence of another crime by the defendant and instructions to the jury relating to the defense of alibi. Held:

1. Under decisions exemplified by Anderson v. State, 222 Ga. 561 (3) (150 SE2d 638); Gunter v. State, 223 Ga. 290, 291 (154 SE2d 608), it was not error to admit evidence of the defendant having committed another rape within days of the rape for which he was on trial. In both instances the same method of operation was used, in both instances it was testified that the defendant pulled his automobile up along side his victim's automobile, used a sawed-off shotgun or rifle to intimidate his victim, drove the victim back to the vicinity where he originally accosted her and in each instance told the victim that he did not want "to hear about this" the next day. The fact that in one instance the defendant also robbed his victim would not make the evidence inadmissible, and the instructions of the court limiting such evidence to show state of mind, plan, motive or scheme of the accused, show no reversible error. Nor, even assuming, but not deciding, that the testimony of the victim of the rape whose testimony was admitted solely for the purpose of showing state of mind, etc., must be corroborated, was it error to admit such evidence, where, as in this case, her testimony was corroborated.

2. The instructions of the trial court on the subject of alibi complained of in the third and fourth enumerations of error show no reversible error. See Smith v. Hightower, 227 Ga. 144 (179 SE2d 242), and citations.

Judgment affirmed. All the Justices concur. Felton, J., concurs in the judgment only.