Defendant and another were indicted in two counts for the offense of armed robbery by the use of an offensive weapon, a shotgun, in the taking of private property of two named persons with the intеnt to commit theft. Upon a separate jury trial this defendant was convicted on both counts and sentenced to serve a term of life in confinement. His motion for new trial was filed, heard and denied, and hе appeals. Held:
1. During the trial, and after the voir dire examination of the jurors, one of the jurors advised the court that although she did not recognize the defendant “this morning” (apparently at the time she
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answеred the voir dire questions) she now believes that she knew or was acquainted with the defendant, she being an employee in a law office and that this defendant and his father, whom she now recognized in the cоurtroom, had come into the law office after he had just been released from jail. The court, however, advised her that the defendant had not been out of jail since his arrest and returned her to thе jury room even though she now believed she had seen him on this occasion. Defense counsel was reluctant to move for a mistrial and stated that he would rather wait or to ask the court to reservе a motion for mistrial until he could reach a decision. Whereupon the court advised him that it would not do this, and defense counsel moved for mistrial which was forthwith overruled. No other evidence was prоduced other than that shown above, and there was no showing that the prospective juror had withheld information during the voir dire even though the juror during the trial became thoroughly convinced that she had seеn the defendant come into the law firm where she worked seeking the aid of an attorney in regard to a burglary charge. Nevertheless, there was no evidence of misconduct on the part of the juror, and no abuse of discretion has been shown with reference to the denial of the motion by the trial court. The grant of a mistrial here was not essential to the preservation of the right to a fair trial. See in this connection
Ladson v. State,
2. The co-defendant (accomplice) pleaded guilty to the offense *633 of robbery and testified against the defendant. Prior to his becoming a witness, and during the course of trial and in front of the jury, the district attorney made a statement in his place as an officer of the court that an agreement had been entered into between the state and the co-defendant in exchange for his testimony. He stated an agreement was made that the co-defendant would plead guilty to the offense of robbery, which he did in fact do, and that if he would testify truthfully the state would recommend that he be sentenced to a sentence of ten years, seven to serve in confinement and thrеe years on probation. Further, the state would also recommend that the co-defendant be sentenced to serve same in a certain correctional institution or similar location. Wherеupon, counsel for defense stated that he considered this to be an evidentiary statement by the district attorney and he was entitled to cross-examination which was denied by the court advising only that he wоuld have the right to cross-examine the witness.
In the second enumeration of error we consider here, the defendant contends the trial court violated his Sixth Amendment right of cross-examination and erred in not allowing the defendant to cross-examine the district attorney as to the statement made in his place concerning the deal made by the state and the co-defendant and that the proseсution is under a duty to disclose any plea agreement in exchange for a co-defendant’s testimony. See
Williams v. State,
3. During the evidence phase of the trial it developed that certain notes or letters were passed between the defendants while
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they were incarcerated. In the closing argument defense counsel made reference to the fact that forensic science could be used to match the handwriting but that it did not happen in this case. Whereupon, state counsel objected that defense counsel knew that under
State v. Armstead,
4. The next enumeration of error contends that the trial court erred in denying a motion to suppress identification testimony which was based upon a prior impermissibly suggestive photographic line-up. At trial defense counsel referred to a written motion to suppress the testimony with reference to the witness’ in-court identification based upon prior tainted identification by the use of photographs. In the absence of the jury a hearing was conducted with referenсe to the witness’ testimony as to her in-court and pretrial identification of the defendant with reference to a line-up and a later examination by the witness as to photographs presented to her by law enforcement officials. After a thorough examination of the procedure used with reference to the identification of the defendant as to whether or not it was suggestive identificatiоn the court refused to rule out the witness’ in-court eyewitness identification based on alleged prior unconstitutional out-of-court identification, and the motion was overruled. The witness was then allowed to make an
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in-court identification of the defendant. As was the case in
Heyward v. State,
5. The remaining enumeration of error complains that the conviction of the defendant was based upon the uncorroborated testimony of the co-defendant in violation of OCGA § 24-4-8 (Code Ann. § 38-121). Here the accomplice was not the sole witness. Further, the accomplice’s testimony wаs fully corroborated by the facts and circumstances surrounding the incident as to the armed robbery. See
West v. State,
Judgment affirmed.