*1 v. THE STATE. 46049. JOHNSON аppeals Presiding Judge. The defendant a conviction Jordan, burglary. Held: sentence for prosecutor "fired” the
1. The use of the word grant on the no basis for the of a mistrial statement affords prosecutor deliberately put the char- ground that the accused’s merely colloquial here used it acter in evidence. the sense as victim, accused, the and not the had terminated discloses that alleged employment the of- the accused’s a short before committed. The mere statement has fense was right law. The to been fired "is not as a matter of fire, implies right hire the to and therefore a statement that employer the one’s does not latter has exercised necessarily tendency injure employee to or discredit the Publishing Company discharged.” who has been Fairbanks P. 2d 195. Pitka prosecutor
2. The remarks of the to which counsel for the defense objected "because there is no scintilla of evidence that this de- keys fendant knew where the were” are not transcript. transcript is insufficient support to the contention. See Travis App. 800 failing that the court
3. contention erred instruct testimony of Cleveland Hall is without merit. Neither the enumeration nor the brief includes cita- transcript support tions to the this wit- impeached by repeatedly ness "had been he statements knowingly testimony placing made.” The of this witness alleged at the crime in effect ad- accused scene mitted who stated to the that "when he me, probably proceeded did see me” and then said he seen by stating, explain presence passing through "I there stopping starting, just kept pass- it. far no so as ing.”
4. of whether the The above leaves consideration sole issue supports the conviction. is uncontradicted that burglarized premises closing between the time of
someone p.m. discovery p.m. of the crime about 1:15 and the about p.m., vicinity about 5 left his work Cleveland Hall and an unidenti- leaving the defendant as he was he observed which, premises near a door person in thе rear of the fied *2 testimony, unlocked from the inside. other had been something engaged loading a truck. men were in on These two testified, "Well, referring when Specifically Hall something uр handing him on the truck.” our saw he was of the accused as opinion the evidence authorizes the conviction participant in the J., Hall, J., Eberhardt, Pannell, P. JJ., Evans, JJ., Quillian, and and dis- Deen concur. Whitman sent. May
Argued 3, 5, March 197 1 Decided 1971 applied Rehearing Cert, denied June 1971 — for. Mitchell, appellant. for Louis H. Jr.,
Eugene Polleys, Attorney, appellee. Hardwick District for Judgе, dissenting. Defendant with bur- glary. jury, attorney the district character, by telling jury attacked the defendant’s that de- burglarized. had "fired” from fendant which was mistrial, promptly during counsel Defendant’s moved jury, judge suggested absence the district attorney that he use a different word than "fired.” The district attorney, during the absence of the stated he would use "ter- employment.” mination of thereafter, рres-
But the trial did not at statement; jury, reprove attorney ence of the for such it; disregard nor did he instruct nor did the district statement, attorney apologize withdraw the nor did he ever jury for thе unauthorized remark. forcibly; discharge position;
"To fire” means "to evict from a summarily.” definitely discharge upon fixes blame fault "fired.” constantly guarded Our law has of a defendant with having to not his character attacked unless he himself 38-201, places Our first issue. See Code courts also §§ strongly guarded right, again appel- and time and permitting late courts have reversed the trial courts for a defend- State, though ant’s character to be issue even many of such cases the were in- remarks withdrawn and the State, structed to them. See Garrett v. 21 Ga.
(8) (95 301); Josеy 64); 89 Ga. SE2d (1) (90 Smoot v. Bland v. (7) (78 Deen, by Judge A recent case written by Presiding Judge
concurred Jordan and citing the Bland is that of Smith (1) (164 following language: On 465 we find the hearing "'Where counsel in the make statements оf prejudicial evidence, duty matters which are not in it is the interpose same; and, made, court to counsel, he shall proper also rebuke the all needful and instructions to the improper impression endeavor to remove the minds; or, discretion, from their order a mistrial *3 plaintiff’s attorney is the offender.’ Code 81-1009. 'In the § trial of a criminal counsel for the State should refrain from making any argument might unfairly be calculated to influ- arriving ence the at its Bland verdict.’ v. (78 allow, 'It is error to over
defendant, prejudicial and
go
irrelevant
matter to
bеfore the
trial,
which tends to
his character and conduct before
where the nature of the case does not involve such char-
Fitzgerald
acter.’
v.
fendant’s was admissible order to show motive. He admits that he could find no supporting propo- cases sition, but he did cite two cases where the crime was But, entirely arson. arson is different from The commis- presumes injuring sion of arsоn damaging the motive of or and, inferentially, of bur- property, its owner. The commission burglar. a glary presumes the motive of enrichment attorney’s complete contention herе is that answer to the district to show defendant had fact there was no evidence introduced language "fired” and thus a double error was committed. only defendant’s but it was without used not attacked in fact. foundation Publishing majority opinion cites the case of Fairbanks Pitka, quotes there-
Company v. 376 P. 2d has been fired 'is not from: "The mere statement ” reading . .’ But a careful as a matter of law. saying simply that such is shows the court was se,” "defamatory per meaning the libel and not within the slan- language der law. This 195 of the cited case is followed by question following: herе at "There was least publication in fact as whether the understood those defamatory.” whom it addressed in a sense which made it (Emphasis judice, supplied.) In the case sub could have fault, language import understood the of course this con- ’’fired” Further, stituted an attack on character. there is a defendant’s very requisites vast difference between the nаrrow confines of the libel) (or per- of a suit for and an attack A slander on character. completely opponent, son’s character be annihilated yet injured person may plead good not be able to cause prove of action under the law as to slander. To libel it be must that the words written were both malicious. Code judice, the case sub of course the defendant required attorney’s to show the district words were actuated spoken malice. To slander must be shown words crime, disorder; charge contagious or an act which would *4 society, plaintiff damage exclude the from or words would illustrate, profession. him in his business or Code 105-702. To 511) Fowler, of Jordan v. case slander, plaintiff: Pinkney suit for the defendant said of "William yellow low ... a damn Jordan is damn down son of bitch low yellow dog.” held to be down rotten This was slanderous. But suppose attorney, statement going stated that he these exact words were true of the say defendant —could one defendant’s character had not been placed in granted? issue and that a mistrial should not be To the holdings same effеct are the in Morris v. Poole, Jones v. 309 SE2d
Thus, respectfully it is contended that per words which are not se slanderous still attack and that defendant’s improperly character attacked and in issue the dis- attorney’s opening trict would, in this case. I therefore, reverse the trial court because of the error set forth enumeration of error 4.
I am authorized joins to state that Whitman me in this dissent. DISTRIBUTORS,
46074. ASSOCIATED INC. v.
PARKER et al. Judge. Distributors, Inc., building Associated material dealer, brought Parker, against contractor, an action B. J. Bright Marjorie homeowners, W. Shafer Bright, seek- ing to rеcover of the contractor a balance on account for build- ing building materials used in the of their house foreclosure of a against materialman’s lien property. defendant contractor filed a alleging counterclaim that certain flooring, one, ordered proved as number to be defective and substandard, and that replace would cost $750 to the sub- standard and flooring. defective The owners also counterclaimed reasons, $2,000 seeking for the same damages. The case was judge heard before the trial without a and he found in favor of the contractor the amount of his counterclaim less the upon. plaintiff amount of the account building sued mate- appealed, rial deаler being enumerations of error six number, going sufficiency but all of the evidence. Held: ample While there was finding to have authorized a counterclaim, favor of the materialman as to the the evidence did not demand finding such a as there was sufficient evidence finding authorize the contrary. J., Deen, J., concur.