Opinion
No. CR 75-182.
Opinion delivered February 2, 1976
1. ROBBERY — USE OF FIREARM — ADMISSIBILITY OF EVIDENCE. — Evidence that appellant had a gun in his possession when he was arrested held admissible where the victim identified appellant and testified that appellant used a .22 pistol during the robbery. 2. CRIMINAL LAW — APPEAL ERROR — NECESSITY OF RAISING OF IN TRIAL COURT. Defendant's failure to object at trial to testimony that he had a gun in his possession when arrested precluded the Supreme Court from considering the contention for the first time on appeal.
Appeal from Pulaski Circuit Court, `Richard H. Adkisson, Judge, affirmed.
John W. Achor, Public Defender, for appellant.
Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
Appellant was convicted by the court, sitting as a jury, of armed robbery and sentenced to 21 years pursuant to the provisions of the Habitual Criminal Act, Ark. Stat. Ann. 43-2328 (Repl. 1964). An additional two year sentence for the use of a firearm was also imposed. Appellant's sole contention for reversal is that the prosecuting attorney improperly presented evidence that appellant had a gun in his possession when he was arrested. Appellant relies on Botany v. State, 258 Ark. 866, 529 S.W.2d 149 (1975). There we said "that [the] weapon had nothing to do with the offense on trial." In the case at bar, however, the victim identified the appellant and testified that appellant used a .22 pistol during the robbery. One of the arresting officers testified that when he arrested the appellant he had a .22 pistol in his possession. We cannot say, in view of this evidence, that the weapon had nothing to do with the offense of robbery. Therefore, Botany is not controlling.
Furthermore, appellant did not object to the testimony that he had a gun in his possession when arrested. In the absence of an objection we are precluded from considering appellant's contention for the first time on appeal. Ford v. State, 253 Ark. 5, 484 S.W.2d 90 (1972); and Williams v. State, 257 Ark. 8, 513 S.W.2d 793 (1974).
Affirmed.