Whitehead was convicted of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. The enumerations of error are addressed to (1) whether Whitehead’s alleged common law wife could be compelled to testify; (2) whether the evidence authorized the conviction; (3) whether the three counts merged into one crime; and (4) whether the sentence was proper. We find that the possession of a firearm count merged into the offense of armed robbery, and the conviction on that count is reversed; otherwise, we find no error and affirm.
1. The trial court compelled Bessie Mae Cobb to testify against Whitehead, despite Whitehead’s objection on the ground that she was his common law wife. The state contended they were not husband and wife; the trial court held a hearing on the question and concluded that there was no marriage relationship between the two. "The competency of a witness is decided by the court. Code § 38-1601. Where competency of a witness depends on a question of fact, the decision by the trial judge will not be disturbed by this court if there is any evidence to support his finding.
Carroll v.
Barber,
2. The evidence authorized the verdict.
3. The evidence in this case showed that a pistol was used, not only to accomplish the armed robbery, but also to shoot and beat the victim. Under these facts, it is clear that the offenses of armed robbery and aggravated assault do not merge, either in fact or in law.
Harvey v. State,
4. There is no merit in the contention that the trial court, having imposed a life sentence for armed robbery, was not authorized to impose, as to the other counts, additional sentences consecutive to the life sentence. However, the sentence imposed for possession of a firearm must be vacated.
Judgment affirmed in part and reversed in part.