
    49446.
    MARTIN v. THE STATE.
    Submitted May 29, 1974
    Decided June 14, 1974.
    
      Custer, Smith & Manning, Lawrence B. Custer, John R. Manning, for appellant.
    
      George W. Darden, District Attorney, Richard L. Moore, for appellee.
   Stolz, Judge.

The defendant appeals from his conviction of aggravated assault, terroristic acts and threats, and burglary, and his consecutive sentences of 10, 3, and 5 years respectively. The only enumerated error is the overruling of his motion for a new trial on the general grounds. The defendant was positively identified by his victim, who had seen him on several previous occasions and saw and recognized him at the time of the perpetration of the criminal acts for which he was convicted. Although the defendant, relying on the defense of alibi, proved that a "Leon Martin” had a cast on his foot at that time which would have prevented the actions testified to, he failed to prove that it was the same Leon Martin as the defendant.

There being some evidence to support the judgment, this court will not disturb the trial court’s refusal to grant a new trial. See Stewart v. State, 128 Ga. App. 11, 12 (195 SE2d 251) and cits.

Judgment affirmed.

Eberhardt, P.J., and Deen, J, concur.  