Fuller v. State , 228 Ga. 546 ( 1972 )

228 Ga. 546 (1972) 186 S.E.2d 888

FULLER
v.
THE STATE.

26887.

Supreme Court of Georgia.

Argued December 13, 1971. Decided January 6, 1972.

Drew, Hendrix & Shea, Lionel E. Drew, Jr., for appellant.

Andrew J. Ryan, Jr., District Attorney, Andrew J. Ryan, III, Robert E. Falligant, Jr., 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.

UNDERCOFLER, Justice.

Edgar Lee Fuller was indicted by the grand jury of Chatham County, on two separate bills of indictment. One charged him with the offense of rape and the other with unlawfully taking a sum of money from the victim on September 17, 1970. The defendant elected to be tried separately on each indictment. The jury found the defendant guilty of the offense of rape and sentenced him to imprisonment in the penitentiary for life. He filed a motion for new trial which was overruled by the trial court. He appeals to this court. Held:

1. After the victim had testified that she had been raped, she testified that the appellant took from her $1.50 without her consent and against her will. The appellant moved for a mistrial on the ground that there was a separate indictment for the unlawful taking of her property, that the jury did not have the right to know that there were other indictments pending against the appellant, and that this offense was "a separate and distinct crime after the rape had occurred and had nothing to do with it."

The appellant contends that the trial court erred in overruling his motion for a mistrial. We do not agree.

In Williams v. State, 223 Ga. 773 (1) (158 SE2d 373), this court held: "On the prosecution of the defendant for rape, evidence tending to show that the defendant also committed robbery is admissible as a part of the res gestae of the commission of the crime of rape."

There is no merit in this enumeration of error.

2. The appellant contends that the court erred in failing to charge the jury without request on the defense of alibi when this was the only defense offered by him. The record shows that there was no evidence of alibi introduced during the trial. The defense was raised by the appellant's statement. "It is well-settled law in this State that it is not error to fail, in the absence of a written request to do so, to charge the defense of alibi when such defense is raised only by the defendant's statement. Wynes v. State, 182 Ga. 436 (185 S.E. 711)." Bagley v. State, 212 Ga. 206, 207 (91 SE2d 506). This enumeration of error is without merit.

Judgment affirmed. All the Justices concur.