Jenkins v. State

147 Ga. App. 21 (1978) 248 S.E.2d 33

JENKINS
v.
THE STATE.

56218.

Court of Appeals of Georgia.

Argued June 29, 1978. Decided July 14, 1978.

G. Terry Jackson, for appellant.

Andrew J. Ryan, III, District Attorney, Joseph D. Newman, Assistant District Attorney, for appellee.

SMITH, Judge.

We affirm appellant's convictions of rape, armed robbery and burglary.

In the early morning hours of August 28, 1977, appellant broke through a window into the prosecutrix' house, raped her and stole money from her. Two female witnesses other than the prosecutrix testified as to like attacks upon them by the appellant. All these crimes took place during early morning hours in the same general neighborhood in Savannah, within one-half mile of one another and during a six-day time period. Appellant entered each victim's home through a window while she slept.

1. As the district attorney refused to stipulate that the results of a polygraph test would be admissible, we find no harmful error in the trial court's denial of appellant's motion to compel the district attorney to administer to appellant such a test. See State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977).

2. Appellant asserts the trial court erred in admitting the "other crimes" evidence. We disagree. As appellant admits, the assailant's identity was the "controlling issue" in this case. The other crimes perpetrated by him were quite similar in nature, and their relevancy to the issue of identity outweighed any prejudicial effect. Burnett v. State, 234 Ga. 741 (218 SE2d 4) (1975); Fears v. State, 236 Ga. 660 (225 SE2d 4) (1976). The fact that appellant was acquitted of a charge brought by one of the other victims does not require a different conclusion. Taylor v. State, 174 Ga. 52 (7) (162 SE 504) (1931) (overruled on another ground in Wood v. State, 219 Ga. 509 (134 SE2d 8) (1963)); Dandridge v. State, 109 Ga. App. 33 (1) (134 SE2d 814) (1964). (This writer acknowledges the authority of Taylor v. State, supra, but continues to disagree with the reasoning of Taylor. See Rivers v. State, 147 Ga. App. 19 (1978) (Judge Smith concurring specially)).

Judgment affirmed. Deen, P. J., and Banke, J., concur.