Cook v. State

162 Ga. App. 778 (1982) 293 S.E.2d 46

COOK
v.
THE STATE.

64159.

Court of Appeals of Georgia.

Decided June 30, 1982.

Susan L. Frank, for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Joseph J. Drolet, John Turner, Assistant District Attorneys, for appellee.

BIRDSONG, Judge.

James Cook appeals from his conviction of theft by shoplifting of a clock. Held:

1. The trial court did not err in overruling appellant's objection to the indictment which alleged that appellant was known by numerous aliases. The proper remedy in such cases is a plea of misnomer alleging that the defendant has never been known by any of the names set out in the indictment; this was not made in the case. Code Ann. § 27-1505; Stevens v. State, 247 Ga. 698, 701 (278 SE2d 398). Where an accused is known by different names, it is lawful for the indictment to identify the accused by such names as aliases. Stevens, supra. Moreover, the courts of this state have no power to strike any such aliases merely because the recital of aliases is alleged to prejudicially reflect on the accused's character. Radford v. State, 140 Ga. App. 195 (230 SE2d 345).

2. Appellant contends the trial court erred in permitting the state to introduce testimony implying that appellant was responsible for an independent incident of theft for which appellant was neither arrested nor convicted. There was no error. The testimony complained of was that the storeowner recognized the appellant as the individual who had been in the store ten days earlier when another clock was stolen, and that for this reason, the storeowner called for an employee to watch the appellant in the store. The employee observed appellant remove a clock from the wall and walk towards the exit; the employee followed him, whereupon the appellant put the clock down and ran out the door. The testimony complained of was relevant to explain the storeowner's action in calling for assistance from one who then actually saw the appellant commit the act (Code Ann. § 38-302). Moreover, the admission of the testimony, if it had been error, was harmless error, since in view of the positive identification of the witness who saw appellant take the clock, it is highly probable the testimony did not contribute to the judgment. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

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