Andrews v. State

144 Ga. App. 243 (1977) 240 S.E.2d 744

ANDREWS
v.
THE STATE.

54565.

Court of Appeals of Georgia.

Submitted October 3, 1977. Decided November 14, 1977. Rehearing Denied December 5, 1977.

Ben Lancaster, for appellant.

Charles Crawford, District Attorney, T. Joseph Campbell, Assistant District Attorney, for appellee.

BELL, Chief Judge.

Defendant was convicted of incest with his then 12- year-old daughter and sentenced. Held:

1. The defendant has enumerated as errors numerous parts of the court's charge to the jury. We have carefully examined the charge and hold that the charge in all respects was appropriate to the issues and stated correct principles of law.

2. The defendant claims that the trial court erred in not charging to the effect that the jury had the power to acquit defendant even if convinced beyond reasonable doubt that defendant was guilty. This same claim of error has been previously rejected as meritless in Porter v. State, 141 Ga. App. 602 (234 SE2d 100).

3. The defendant argues that the evidence is insufficient to authorize the conviction as the victim's testimony was not corroborated. In sex crimes generally, if the victim is able and does consent to the crime, the victim is considered an accomplice under Code § 38-121 requiring corroboration of the victim's testimony. Wilkins v. State, 96 Ga. App. 841 (101 SE2d 912). There was evidence shown which corroborated the victim's testimony in this case. The evidence authorized the conviction.

4. The constitutionality of Code § 26-2006, our incest statute, was raised for the first time on appeal and it cannot be considered. Bowman v. State, 231 Ga. 220 (200 SE2d 880).

Judgment affirmed. McMurray and Smith, JJ., concur.