Hammond v. StateHammond v. State
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- Before:
- Quillian
Dеfendant appeals his conviction for burglary and sentence imposed under Code § 27-2511, as amended (Ga. L. 1953, Nov. Sess., pp. 289, 290; 1974, pp. 352, 355) as a rеcidivist. Held:
1. It is contended that the trial court committed reversible error by refusing to grant defendant’s motion for a mistrial after the state had impermissibly рlaced his character in issue. We agree. Defendant had been apprehended by the police as he exited the burglarized рawn shop through a hole in the wall. His identity was not in issue. The district attorney called one of the owners of the pawn shop and asked him: “Q. . . whether or not you have ever seen the Defendant in your pawn shop? A. Yes *821 sir... several days before [the burglary]. Q. What was the occasion... A. He came into the pawn shop with three long guns and maybe a couple of shotguns and a rifle or vice versa .. . Q. For what reason did he come in there? A. He came in to pawn them. Q. . . did you accept the pawn? A. Not right off. I asked him was he qualified to buy the guns back. Q. Did you determine whether or not he was qualified? A. Yes sir. Q. Was he qualified? A. No sir.” Defendant objected on the basis that “whether or not [defendant] was qualified to buy those long guns back or not is not material. .. and obviously the question [was to elicit] that he was not qualified. Now, the jury is not completely ignorant.. . They know there is a reason he is not qualified. At this point the Defendant’s character has been interjected into this case by the prosecutor, and I am going tо move for a mistrial.” His motion was denied.
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“The general rule is that evidence of a distinct, separate and independent offense is inadmissible on the prosecution for another crime ...” Joiner v. State, 236 Ga. 580, 581 (224 SE2d 414). Exceptions to the foregoing rule all rest on the premise that there must be “some logical connection between the two, from which it can be said that proof of the one tends to establish the other.” Cawthon v. State, 119 Ga. 395, 408 (46 SE 897); Joiner v. State, 236 Ga. 580, 581, supra. In Davis v. State, 233 Ga. 638, 639 (2) (212 SE2d 814), the court held that such evidence “was admissible to show intent, motive, plan, scheme and bent of mind of the defendant.” The evidence admitted here *822 does not meet these criteria.
Of course there are other reasons for disqualification of a person to purchase firearms. Threе reasons relate to various types of misconduct and the fourth reason is for mental incompetency. See
2. Defendant, indicted under the name of Larry Wayne Hammond, contends the “finding of recidivism by the jury ... is not supported by the evidence ... since the state failed ... to carry its burden of proving beyond a reasonable doubt that [defendant] was the individual named in the recidivist allegations of the indictment.” We disagree.
The three exhibits used by the state to prove recidivism showed the defendant in those cases to be “Larry Wayne Hammond,” “Larry Hammond,” and “Larry Hammоnds.” Suffice it to say that all convictions were in the Superior Court of Clarke County, before Judge Barrow, and other court documents attaсhed to each of the convictions identified the defendant as “Larry Wayne Hammond.” Each of the state’s exhibits was admitted without objectiоn. Concordance of name alone is some evidence of identity. Code § 38-304. Further “in the absence of any denial by the defendant and no proof to the contrary” this concordance of name is sufficient to show that the defendant and the individuals previously convicted were the same person. Stinson v. State, 65 Ga. App. 592, 594 (16 SE2d 111); Booker v. State, 70 Ga. App. 514, 517 (28 SE2d 778); Palmer v. State, 99 Ga. App. 754 (109 SE2d 613); Hobbs v. State, 229 Ga. 556, 559 (3) (192 *823 SE2d 903). Furthermore, this issue of identity of the defendant and those persons listed in the previous convictions was submitted to the jury. Thеy found in favor of the state. There is sufficient evidence to authorize the verdict of the jury. Ridley v. State, 236 Ga. 147 (223 SE2d 131). We find no error.
3. It is argued that the trial court erred in ruling that, once the jury found defendant to be a multiple offender, the court had to impose the maximum sentence authorized by law for the offense of which hе had been found guilty. We agree with the trial court. Code § 27-2511, as amended, supra, is divided into two parts. The first part addresses the imposition of a mаximum sentence for a second conviction and the second part of the statute refers to a defendant having been convicted three times of felonies, “must, upon conviction of such fourth [felony] offense [other than a capital felony].. . serve the maximum time provided in the sentence of the judge based upon such conviction, and shall not be eligible for parole until the maximum sentence has beеn served.” Defendant contends that the second section of Code § 27-2511 does not require imposition of the maximum sentence, but only that defendant serve the “time provided in the sentence of the judge . .. and shall not be eligible for parole.”
This construction ignores that proviso in the second section that “upon conviction of such fourth offense . . . [defendant must] serve the maximum time... based upon such conviction. . .” The first section of Code § 27-2511 makes it mandatory that any person who “shall afterwards commit a crime punishable by confinement and labor in the penitentiary . . . shall be sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which hе stands convicted. . .” Thus, whether the offense for which defendant currently stands convicted is his second, third, fourth or fourteenth — the only sentence imposable for “such conviction” is the maximum time prescribed by the statute for that offense. Landers v. Smith, 226 Ga. 274, 275 (3) (174 SE2d 427); Booker v. State, 70 Ga. App. 514, 517, supra; Moye v. State, 70 Ga. App. 890, 898 (29 SE2d 791); Timbs v. State, 71 Ga. App. 141, 144 (30 SE2d 290). *824 The court did not err in ruling that he was required to impose the maximum sentence under the statute for the offense of which defendant was convicted.
4. The remaining assignments of errors are either mooted by the above holdings, are without merit, or are not likely to recur upon a new trial.
Judgment reversed for the reason set forth in Division 1.
Deen, P. J., and Webb, J., concur.