Smith v. State

241 S.E.2d 465, 144 Ga. App. 579, 1978 Ga. App. LEXIS 1691

• Court: Court of Appeals of Georgia
• Decided: January 23, 1978
• Docket: 55163
• Status: Published

Opinion

Banke, Judge.

The defendant appeals the denial of his motion for new trial following his conviction for child molestation.

1. The child, a five-year-old girl, was located by her mother almost immediately after the incident took place. She was emotionally distraught and in tears. Evidence that the child told her mother that the defendant had taken her to a wooded area, removed her pants, and touched his sexual organ to hers was properly admitted as part of the res gestae. See Code § 38-305; Robinson v. State, 232 Ga. 123, 129 (6) (205 SE2d 210) (1974); Johnson v. State, 142 Ga. App. 560 (236 SE2d 552) (1977).

2. "Objection as to the competency of an infant of tender years to testify as a witness will not be considered when no such objection was made at the trial.” Polk v. State, 18 Ga. App. 324 (5) (89 SE 437) (1916); Dunn v. State, 83 Ga. App. 682 (1) (64 SE2d 478) (1951).

3. A counselor from the Rape Crisis Center at Grady Hospital stood beside the child as she testified and volunteered what was stated to be the child’s whispered response to a question by the assistant district attorney. Defense counsel moved for and was granted a mistrial; however, he then requested and obtained corrective instructions to the jury and expressly withdrew the motion for mistrial. The failure to grant the mistrial may not now be asserted as error.

Submitted January 5, 1978 Decided January 23, 1978. Guy R. Dunn, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Thomas W. Thrash, R. Andrew Weathers, Assistant District Attorneys, for appellee.

4. The evidence overwhelmingly supported the verdict.

Judgment affirmed.

Deen, P. J., and Smith, J., concur.