Appellant was tried on two separate indictments which were consolidated for trial. In Case Number 61922 appellant was convicted of rape, kidnapping and aggravated sodomy as charged in one indictment. In Case Number 61923 he was convicted of attempted rape as charged under the second indictment. Appellant appeals from the convictions under both indictments, filing the identical enumeration of errors in both cases. Accordingly, the two appeals are consolidated for review.
1. Apparently at the same time that appellant was indicted for the charges which are the subject of the instant appeals, he was also indicted on yet another charge of rape. He was brought to trial on this third indictment before bеing tried on the instant two. In the trial on this third indictment, the two victims of the crimes for which appellant was subsequently convicted in the instant cases testified concerning appellant’s sexual attaсk upon them. Their testimony was apparently admitted in the earlier trial under the “similar crimes” exception to the “other transactions” rule. Appellant was acquitted of the rape charged in the third indictment.
At the outset of the instant trial on the remaining two indictments, appellant invoked a ruling by the trial court on the admissibility of evidence concerning his former acquittal of the chаrges in the third indictment. The trial court ruled that the
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previous trial concerned a “separate transaction” and that the fact that appellant was acquitted of the charges therein would be irrelevant unless the state first sought to introduce into the instant trial evidence concerning the circumstances connected with that “separate transaction.” See
Rivers v. State,
The instant trial proceеded under this ruling and the state did in fact introduce evidence concerning appellant’s commission of the rape for which he had been acquitted in the former trial. This was accomplishеd when the state called as its witness the prosecutrix in the previous trial who then testified that appellant had raped her. The trial court instructed the jury of the limited purpose for which this testimony was being admitted and that appellant was on trial for and could be convicted of only the offenses set forth in the indictments in the instant case. See
Taylor v. State,
Appellant urges that the trial court’s original ruling, delimiting the circumstances in which evidence concerning his previous acquittal would be admissible in the instant trial, was erroneous. In several related enumerations appellant also asserts that subsequent rulings by the trial court concerning the admissibility or inadmissibility of such evidence constitute the erroneous effectuations of its original ruling on the issue. We find no error in the trial court’s original or subsequent rulings on the admissibility of evidence concerning appellant’s prior acquittal.
“The general character of the parties, and especially their conduct in othеr transactions, are irrelevant matter, unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” Code Ann § 38-202. “Proof of other crimes is never admissible (except in cases where the defendant has himself put his character in issue) where its chief or only probative value consists in showing that the defendant is, by reason of his bad character (demonstrated through a criminal career), more likely to have committed the crime than he otherwise would have been. To admit such evidence, it must hаve relevancy and
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probative value from some other point of view.”
Lee v. State,
We find meritless appellant’s contention that his previous acquittal was “relevant”in the instant trial in ways other than that contemplated in the general rule concerning “separate transactions” discussed above and that he was denied the opportunity to present an effective defense because the general rule was adhered to. The еssence of appellant’s argument in this regard is that he was denied the opportunity to impeach the former prosecutrix and the two prosecutrixes in the instant cases by merely showing that they had testified to the same events at the prior trial in which he was acquitted. A witness may be impeached under Code Ann. § 38-1803 by a showing that he had made prior contradictory statements. We know of no rule of law which would allow the impeachment of a witness by the mere showing that a jury which has previously heard the same testimony in another context in another trial failed to return a verdict of guilty. “ ‘The acquittal merely exempts him (the defendant) from punishment and from another prosecution. It does not necessarily show that he was innocent [and that, therefore, the state’s witnesses did not testify truthfully.] ’ ” Taylor v. State,
2. In several enumerations appellant urges that, in violation of Code Ann. § 81-1104, the trial court expressed or intimated its opinion as to what had or had not been prоved in the trial. We have carefully studied the transcript and find no error in this regard. It is clear that all incidents to which appellant refers were not violative of Code Ann. § 81-1104. “ ‘It is not reversible error, undеr Section 81-1104 of the Code, for the judge, in discussing with counsel the admissibility of.testimony, the propriety of a nonsuit, the direction of a verdict, or similar matters in progress of the trial, or in explaining his rulings upon quеstions of this nature to refer to the evidence or to the statements of witnesses, provided he does not go out of the line of legitimate discussion upon the point presented or use such language as to indicate apparent or actual judicial approval or disparagement of any witness or of any part of the testimony.’ [Cits.]”
Miller v. State,
3. It was not error to overrule the appellant’s motion for mistrial predicated upon the state’s allegedly prejudicial closing argument.
Bryan v. State,
4. Remaining enumerations of error are found to be meritless or *638 to have been abandoned.
Judgments affirmed.