Hunter v. State , 177 Ga. App. 326 ( 1985 )

Pope, Judge.

Hunter appeals from his conviction and sentence for aggravated assault on Essie Davis with a knife above the left eye during a brawl on July 12, 1984. A number of people became involved when a fight broke out between two women. Hunter tried to intervene and restrained one of the women, Fanita Munson. Essie Davis approached and got into a disagreement with Hunter, and this escalated into the brawl during which Davis and Hunter’s brother were stabbed. At trial Essie Davis and his brother testified that Hunter cut him with a knife or something. The third State’s witness was not certain who did the stabbing.

1. A prior conviction and sentence of defendant Hunter was admitted, over objection, during the State’s case-in-chief. It showed that defendant was convicted of aggravated battery in that he did, on January 8,1982, “maliciously cause bodily harm to the person of Leonard McCoy by rendering a member of his body, to wit: his left eye, useless, by stabbing and cutting the said Leonard McCoy in the left eye . . . .” Out of the jury’s presence, the State had offered the evidence “to show that he is a person who has in the past stabbed people in the eye ... to show that he has a propensity to use a knife.” Defendant objected on the grounds that it was not relevant, that it was more prejudicial than probative, and that it injected defendant’s character in evidence.

“Before evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the (accused) was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. Once the identity of the accused as the perpetrator of the offense separate and distinct from the one for which he is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct.” (Citations and punctuation omitted.) Burks v. State, 174 Ga. App. 304, 305 (329 SE2d 590) (1985). There is no question that the prior conviction met these two prerequisites. First, defendant does not dispute that he was the same person as shown in the conviction. Second, the act of cutting someone around the eye with a knife, just 2-Vz years earlier, with release from service of that sentence being just a few months before the event of trial, was not only similar but was in many ways identical. The court gave proper cautionary instructions to the jury. The evidence meets the criteria for the admission of independent crimes. Therefore, we find that the trial court did not err in admitting evidence of the prior conviction.

2. We find no merit in Hunter’s remaining enumerations dealing with the incomplete polling of the jury. The record shows that one juror was inadvertently omitted during the polling of the jury. Later, after the jury was dismissed, the court discovered the error, and sua sponte obtained an affidavit from the omitted juror that the verdict reached and announced was indeed her verdict. In view of the fact that counsel was present during the polling of the jury and failed to notice the omission or to object to it at that time, there is no reversible error. See Hargett v. State, 151 Ga. App. 532 (260 SE2d 406) (1979).

Judgment affirmed.

Banke, C. J., Deen, P. J., McMurray, P. J., Birdsong, P. J., Parley, Sognier and Benham, JJ., concur. Beasley, J., dissents.