Duvall v. State

238 Ga. 325 (1977) 232 S.E.2d 918

DUVALL
v.
THE STATE.

31738.

Supreme Court of Georgia.

Submitted January 10, 1977. Decided January 28, 1977. Rehearing Denied February 14, 1977.

Garcia & Kennedy, Richard A. Garcia, Robert O. Davies, for appellant.

Lewis R. Slaton, District Attorney, Carole E. Wall, Assistant District Attorney, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., Assistant Attorney General, for appellee.

INGRAM, Justice.

A jury in Fulton Superior Court convicted Walter Duvall of the offenses of armed robbery and aggravated assault. The trial judge sentenced him to serve 18 years imprisonment for the armed robbery and 10 years for the aggravated assault, the sentences to run concurrently. Duvall cites as error in this appeal the admission of a .22 caliber pistol into evidence at the trial and the overruling of his motion for new trial. We affirm as we find no reversible error.

These are the essential facts of the case: In July, 1975, two armed males accosted a lady and her 13-year-old daughter at their home. After forcing their way into the residence, the robbers bound their victims and searched the house for money. During the course of the robbery, the assailants struck the mother with their guns and fists and threatened to kill the daughter. Appellant Duvall was subsequently arrested for the crimes and was positively identified by both victims. The authorities found a .22 caliber pistol in appellant's car. Appellant presented a defense of alibi at the trial.

Appellant contends that the admission of the pistol into evidence was error because no connection was shown between the weapon and the crime. Therefore, he argues, the admission of the pistol into evidence was so prejudicial and inflammatory as to require reversal. We do not agree. Where, as here, the victim of a crime identifies a weapon as similar to that used in the commission of the crime, the weapon is admissible whether or not it is the identical weapon. Evans v. State, 228 Ga. 867, 870 (188 SE2d 861) (1972). See also Jung v. State, 237 Ga. 73 (226 SE2d 599) (1976). This contention is without merit.

Appellant's second enumeration of error alleges that the trial court erred in overruling his motion for new trial on the general grounds and on the ground that a directed verdict was required as to the aggravated assault count. Neither contention has merit. The evidence presented in this case was sufficient to authorize the verdicts on both counts. We find no error.

Judgment affirmed. All the Justices concur.