Jackson v. StateJackson v. State
- Reporters:
- , ,
- Before:
- Sognier
Jаckson was charged with two counts of selling marijuana. She was convicted of Count 2, but acquitted of Count 1 in thе Superior Court of Muscogee County. A recitation of the facts is not necessary, *412 as the evidence was more than sufficient to sustain the verdict.
1. Apрellant contends the trial court erred in allowing the state to introduce evidence of Jackson’s character in evidence. The short answer to this contention is that the state did not introduce such еvidence; the testimony referring to the appellant’s character was in response to a quеstion asked by appellant’s counsel on crоss examination of a state witness. When a defensе counsel induces the complained of testimоny, he is in no position to complain. Drake v. State, 142 Ga. App. 14 (234 SE2d 825) (1977); Willingham v. State, 134 Ga. App. 144, 145 (2) (213 SE2d 516) (1975). Further, when the stаte raised the same issue on cross examination of the appellant, the objection of defense counsel was sustained. Thus, no error was committed.
2. Appellant next contends the verdicts arе repugnant because they create an absurdity in the conviction, are the result of a compromise and are therefore void. There is nothing in the record to support this contention. Appellant’s contention that the jury reached a “cоmpromise” verdict is mere speculation. Apрellant has cited no authority, and we find nothing in the record, to conclude the verdict was a compromise. This court cannot consider factual representations in a brief which do not appеar in the record. Konscol v. Konscol, 151 Ga. App. 696 (261 SE2d 438) (1979). Neither are the findings of not guilty of Cоunt 1 and guilty of Count 2 repugnant, or inconsistent. “The determinative factor in such cases is whether the acquittаl of one charge necessarily includes a finding аgainst a fact that is essential to conviction for the other charge. If so, the evidence is then insuffiсient to support a verdict of guilty in the convicted charge.” Conroy v. State, 231 Ga. 472, 475 (202 SE2d 398) (1973). Accord, Stewart v. State, 147 Ga. App. 547 (2) (249 SE2d 351) (1978). Applying this test, it is clear that a finding of not guilty of selling marijuana on August 21, 1978 does not include any finding of fact essential to conviction of selling marijuana on October 20, 1978. Accordingly, this ¿numeration is without error.
3. The enumerations of error designated (C) and (D) have beеn decided adversely to the contentions of аppellant. Skrine v. State, 244 Ga. 520 (260 SE2d 900) (1979); Whisenhunt v. State, 152 Ga. App. 829 (264 SE2d 271) (1979).
4. Appellant made no objection to the court’s initial charge to the jury, and it is well sеttled that this court will not consider questions raised for thе first time on review. Sanders v. State, 134 Ga. App. 825 (216 SE2d 371) (1975). As to the contention that it was error for the trial court to give the so-called “Allen” сharge (Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528), such enumeration is without merit. The instruction given by the trial *413 judge in this case has been approved by both the Supreme Court of Georgia, Spaulding v. State, 232 Ga. 411, 413 (4) (207 SE2d 43) (1974) and by this court. Bankston v. State, 149 Ga. App. 759, 760 (3) (256 SE2d 122) (1979).
Judgment affirmed.
Deen, C. J., and Birdsong, J., concur.