Smith v. State

Undercofler, Presiding Justice.

Appellant was convicted of armed robbery and sentenced to eight years imprisonment. He appeals.

The evidence shows that the appellant entered upon the property of George Clayton’s Quick Market and at gunpoint robbed George Fountain, a salesman who was in the process of making a delivery from his truck located in the parking area.

1. During the trial of the case, the prosecutor, over objection, introduced testimony from George Clayton identifying appellant as one of two robbers who had held him up at an earlier time. The court permitted the testimony to establish motive, scheme, prior similar conduct, and bent of mind. Clayton made a positive identification of appellant and recited details of his robbery. The only similarity between the two robberies was the location. This is not sufficient to connect the two crimes and permit the introduction of evidence of an independent crime. See Cawthon v. State, 119 Ga. 395 (5) ( 46 SE 897 ) (1904) and related cases.

2. Objection to the court’s failure to rule on a portion of the district attorney’s closing argument (making reference to the appellant’s failure to tell arresting officers that he had an alibi) presents nothing for the court’s review. But see Doyle v. Ohio, —U. S.— (96 SC 2240, 49 LE2d 91).

Judgment reversed.

All the Justices concur.

Andrew J. Ryan, Jr., District Attorney, Robert M. Hitch, III, Assistant District Attorney, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., Assistant Attorney General, for appellee.