The defendant was indicted, tried and convicted as a fourth offender under Code 27-2511 of the offenses of kidnapping with bodily injury, aggravated sodomy and aggravated assault. The court first sentenced him to life imprisonment, and twenty years respectively, as a recidivist, but, it being called to his attention that kidnapping with bodily injury was a capital felony and as such not included within the statutory requirement that fourth offenders be given a maximum sentence without eligibility for parole, he vacated the sentence on the kidnapping count and resentenced the defendant to life imprisonment without reference to the recidivist statute. All sentences were to be served concurrently, the distinction being made that the kidnapping with bodily injury sentence might at a later date be subject to parole whereas the aggravated sodomy sentence would not.
The supporting evidence is to the effect that the defendant stopped a female pedestrian, forced her into his car at gunpoint, and after driving about for some time stopped in a deserted area and by holding her head down forced her to commit sodomy per os. She then tried to leave the car; he attempted to force her again and, not succeeding, jumped over the front seat of the car, pulled her into the back seat with him, and attempted intercourse. When she resisted he beat her on the back of the head with a pistol. She eventually was able to open the car door and escape. The defendant was picked up some days later and positively identified; he met previous descriptions which included having a tattoo in the shape of a heart on his left chest. The two enumerations of error on this appeal are directed against the sentencing procedure.
1. The defendant points out that under Clemmons v. State, 233 Ga. 187 (210 SE2d 657)
, it was held error to allow counts of the indictment alleging former convictions for the purpose of obtaining a maximum sentence to go out to the jury on a trial for rape, a capital felony not included in sentencing multiple offenders under Code 27-2511. He then contends that it was error to submit these counts to the jury together since "he must be sentenced under the general recidivist statute for each and every count in the indictment or not be sentenced under the statute at all." The defendant failed to complain when the defendant was indicted under Count 1 under the recidivist statute, although the count is obviously defective in that kidnapping with bodily injury is a capital felony not subject to this statute. He has also failed to raise any question either in the trial court or this court as to the propriety of letting the jury become aware of prior convictions during the guilt phase of the trial, and has thus waived any objection based on that ground. Where capital felonies and noncapital felonies are included in separate counts of an indictment, the fact that Code 27-2511 is not applicable to the capital felony count in no way affects its applicability to the remaining counts.
2. The crimes of aggravated assault or rape and kidnapping do not necessarily merge as a matter of law, although they may do so as a matter of fact. Thomas v. State, 237 Ga. 690
, 694 (229 SE2d 458
). Where the same conduct of the accused establishes the commission of more than one crime, he may be prosecuted for each. Jarrell v. State, 234 Ga. 410
, 413 (216 SE2d 258
). Where, however, the aggravated assault conviction is as a matter of fact included in the kidnapping with bodily injury count, the former conviction and sentence will be vacated because there exists a merger of offenses as a matter of fact under Code 26-506. Williams v. State, 238 Ga. 244 (7) (232 SE2d 238)
. But evidence of the assault, if it is the same evidence as that establishing bodily injury under the kidnapping charge, cannot be used to make out both crimes. Allen v. State, 233 Ga. 200
, 203 (210 SE2d 680
In the present case the aggravated sodomy count was a completed crime when the defendant forced the victim to commit this act against her will. The attempt at rape occurred shortly thereafter and constituted the bodily injury on which the increased sentence in the kidnapping count is founded. The kidnapping and sodomy counts may therefore stand. The trial court is directed to vacate the conviction and sentence for aggravated assault.
Judgment affirmed in part and reversed in part. Smith and Banke, JJ., concur.