Case No. 43614- During the trial the assistant solicitor cross examined defendant Emory Brown as follows: “From 1947 through 1959, a period of twelve years, tell us whether or not you were gainfully engaged in private industry or not. The Court: Does it have some probative value in his relationship with this? . . . [Assistant Solicitor] : Yes, Sir. Mr. Roberts: I’d like to argue this out of the presence of the jury. . . The Court: I’m going to have to wait and see what his questions are. . . A. I didn’t work for private industry. I worked for the Government. Q. What branch of the Government? A. Federal Prison industry. Q. For a salary? A. Yes, sir. Q. What was the salary? A. Thirty-five cents an hour. Q. Where did you live? A. In the Federal Penitentiary.” At this point defendant’s counsel interposed a motion for mistrial. The trial court then instructed the assistant solicitor, but without reprimanding him, not to cross examine defendant further concerning his whereabouts during the period in question and instructed the jury to disregard the quoted testimony as evidence. Defendant’s counsel then renewed the motion for mistrial and it was overruled. In a subsequent colloquy the assistant solicitor admitted that when he asked the questions he knew defendant was in the penitentiary during the twelve years referred to.
It is axiomatic that the general character of a defendant on trial for the commission of a crime and his character in other transactions is irrelevant unless the defendant himself chooses to put his character in issue.
Code
§§ 38-201, 38-202;
Bacon v. State,
There are various exceptions to the general rule. For a statement of those exceptions and extensive citation of authorities see Judge Townsend’s dissenting opinion in
Hodges v. State,
The line of questioning was calculated to place before the jury, indirectly and inferentially, a fact which under the rules of evidence the assistant solicitor would not be permitted to demonstrate directly. Defendant’s answers were neither voluntary nor unresponsive. Obviously, the courts cannot condone the apparently purposeful accomplishment by indirection of that which they would not permit to be done directly. In this instance the assistant solicitor was overzealous in the performance of his duty. Judges have previously outlined the spirit of that duty by stating: “While the safety of society requires the faithful prosecution of offenders against the laws, the State
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does not ask their conviction but upon a calm and dispassionate investigation of the charges against them.”
Jesse v. State,
“Each case presents a different combination of facts, and must therefore rest on its own bottom, keeping in mind that it is the highest duty to insure a fair and impartial trial to all parties, and not to allow to be injected into the proceedings any illegal element to the prejudice of the defendant’s rights in a criminal case, where his liberty and perhaps his life are at stake.”
Felton v. State,
The matter of granting a mistrial is largely within the discretion of the trial court, but that discretion will be controlled when it is apparent that a mistrial was essential to preservation of the right of fair trial. Ordinarily, when illegal testimony is placed in evidence, it is not an abuse of discretion to refuse to grant a mistrial if sufficient corrective instructions are given in
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ruling the testimony out.
Worthy v. State,
In
Johnson v. State,
It was error to deny defendant’s motion to declare a mistrial.
Case No. 43615. Grady Parker testified that defendant Emory Brown offered him $200 to place dynamite in the victim’s dwelling house. On September 10, 1967, Emory Brown and his wife, defendant Orene Brown, and Parker drove to Atlanta together. The two men never discussed anything about the dynamite in Orene’s presence. Emory Brown registered at an Atlanta motel, and the three went into the motel room, where the two men prepared the dynamite. Parker could not recall that Orene ever saw the dynamite. The two men might have prepared it while she was in the bathroom. The three then drove to the victim’s house in order to locate it. In the early hours of the morning of September 11, the three returned to the house. Parker got out of the car, took the dynamite, which was concealed in a paper sack, entered the premises and attempted to light the fuse. At this point he was captured by the intended victim.
There was no evidence showing that defendant Orene Brown was in any way connected with the transaction except that she was passively present in the automobile with the two men. Without showing that she participated in the felonious design, the evidence was not sufficient to authorize her conviction. Mere proof of presence is not sufficient to render one an aider or abettor or to authorize a conviction.
Thornton v. State,
There is no merit in any of the remaining issues raised on these appeals.
Judgments reversed.