Lumpkin v. State

222 S.E.2d 669, 136 Ga. App. 828, 1975 Ga. App. LEXIS 1501

• Court: Court of Appeals of Georgia
• Decided: December 2, 1975
• Docket: 51310
• Status: Published

Opinions

Stolz, Judge.

The defendant appeals from his conviction of robbery.

1. The verdict and judgment were supported by the evidence.

2. " 'Generally, granting or refusing a continuance is a matter within the discretion of the trial court, and unless abused, such discretion will not be controlled.’ ” Adams v. State, 130 Ga. App. 323 (1) (203 SE2d 318) and cits. The trial judge did not abuse his discretion, as contended in enumeration of error No. 1, in denying the defendant’s request for a continuance to obtain employed counsel, where no motion for continuance was actually and formally made in the case (Horton v. State, 132 Ga. App. 407 (208 SE2d 186)) and where the defendant had been out on bond for eleven months prior to the trial, had been granted a continuance to employ counsel at his arraignment seven months prior to the trial with notice that failure to do so would constitute contempt and result in appointment of counsel, had apparently made no real effort to employ counsel prior to the day of the trial, and where there is no contention or evidence in the record that the defendant’s appointed counsel had inadequate time in which to prepare or that he inadequately represented the defendant. See also Bradshaw v. State, 132 Ga. App. 363 (2) (208 SE2d 173) and cit.; Bradley v. State, 135 Ga. App. 865 (1) (219 SE2d 451).

3. The appellant attempts to raise for the first time in this court an objection to the trial judge’s failure to sua sponte give a corrective instruction to the following portion of the prosecuting attorney’s closing argument to the jury: "I infer to you if you turn him loose, who’s going to be the next victim — one of your relatives, one of your mothers, grandmothers. Possibly, if they’re getting old and got money and he feels like he can do it and get away and not get caught. Who is going to be the next victim?” Even if this objection had been timely raised (see Crowder v. State, 233 Ga. 789 (3) (213 SE2d 620) and cits.), it would have to be held without merit (see Chambers v. State, 134 Ga. App. 53 (4) (213 SE2d 153) and cits.).

4. Where the state’s evidence showed that the 22-year-old male defendant knocked the 73-year-old female prosecutrix to the ground, injuring her, and ripped her purse from her grasp with such force that its straps broke, requiring a verdict of robbery by sudden snatching, and the defendant’s evidence if believed would require an acquittal on the ground of mistaken identity, it was not error to fail to charge on the lesser included offense of theft by taking. King v. State, 127 Ga. App. 83 (192 SE2d 392) and cits.; Hinton v. State, 127 Ga. App. 108 (192 SE2d 717) and cit.

Judgment affirmed.

Bell, C. J., Pannell, P. J., Deen, P. J., Quillian, Clark, Webb and Marshall, JJ., concur. Evans, J., dissents. Submitted September 30, 1975 Decided December 2, 1975. Stephen M. Friedberg, for appellant. Lewis R. Slaton, District Attorney, R. David Petersen, Assistant District Attorney, for appellee.