Opinion
64900.
DECIDED NOVEMBER 3, 1982.
Armed robbery, etc. Bibb Superior Court. Before Judge Bell, Senior Judge.
Audrey P. Biloon, for appellant.
Willis B. Sparks III, District Attorney, George F. Peterman III, Assistant District Attorney, for appellee.
Defendant was convicted of the offenses of armed robbery, violation of the Georgia Firearms and Weapons Act (possessing a sawed-off shotgun having a barrel less than 18 inches in length and overall length less than 26 inches) and possession of a firearm by a convicted felon (after having been convicted of the felony of forgery in the first degree). Defendant appeals. Held:
1. Defendant was not here charged with recidivism but he contends that trying him for the offense of having been convicted of a felony and thereafter being in possession of a firearm (Code Ann. § 26-2914; Ga. L. 1980, p. 1509 [Official Code of Georgia Annotated, § 16-11-131, amended by Ga. L. 1982, p. 1171, § 2, eff. November 1, 1982]), and the use of this charge during the trial and deliberation as to the counts for armed robbery and possession of the sawed-off shotgun, prejudiced his right to a fair trial by denial of due process and equal protection of the law. However, under the count for the possession of a firearm by a convicted felon an essential element of that count is his prior conviction of a felony and his possession thereafter of a firearm, in this instance a sawed-off shotgun. Code Ann. § 26-2914, supra, has heretofore been distinguished from a general recidivist statute which relates only to punishment, and the issue raised by defendant is controlled adversely to him by the decision in Prather v. State, 247 Ga. 789, 790 (2) ( 279 S.E.2d 697). The Supreme Court holding therein that it was analogous to Ingram v. State, 237 Ga. 613, 614 (2) ( 229 S.E.2d 416), and did not impermissibly put his character in issue as same was a necessary element of the state's proof as to the crime charged. See also Biggers v. State, 162 Ga. App. 163, 165 (2) ( 290 S.E.2d 159). There is no merit in defendant's complaint.
2. Defendant next complains of the introduction into evidence of a mug shot of him which showed jail bars and three-way mirrors showing in the background, thus prejudicing his right to a fair trial by placing his character into evidence. Yet, such photographs have previously been held not to have impermissibly placed the defendant's character in issue in a number of cases. See in this connection Knight v. State, 243 Ga. 770, 775 (3) ( 257 S.E.2d 182); Lee v. State, 237 Ga. 179, 180 (2) ( 227 S.E.2d 62); Clark v. State, 159 Ga. App. 136, 138 (3) ( 282 S.E.2d 752), s.c. 249 Ga. 18 ( 287 S.E.2d 523). But compare the recent case of Stanley v. State, 250 Ga. 3 ( 295 S.E.2d 315) although criticizing the practice in that case yet affirmed s.c. 161 Ga. App. 661 (2) ( 288 S.E.2d 683), for a different reason, the trial court in that case having ruled out the offensive testimony and properly instructed the jury not to consider the testimony with respect to the mug shots which had identified the defendant as having a prior record of a criminal offense or offenses. Nevertheless, the above cases control the situation in the case sub judice, and the admission here did not impermissibly place the defendant's character before the jury. There is no merit in this complaint.
3. The evidence submitted at the motion for new trial hearing did not support the claim that a juror was asleep or dozing during the trial. Further, it appears that the defendant himself witnessed the activity or inactivity of the juror, and no complaint was made at the time of its occurrence and prior to the case going to the jury and was raised for the first time before the trial court in defendant's motion for new trial. The findings of fact by the trial court are binding and controlling on the appellate courts and will not be disturbed unless clearly erroneous or wholly unsupported by the evidence. See Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376 (1) ( 274 S.E.2d 761); American Century Mortgage Investors v. Strickland, 138 Ga. App. 657, 661 (1) ( 227 S.E.2d 460). We find no merit in this complaint.
Judgment affirmed. Banke and Birdsong, JJ., concur.