*1 Justice, specially. majority eighth finds that The division of punishment because the enhancement of there was no kid- minimum sentences for defendant received the napping bodily The vehicle theft. harm and motor with served con- minimum sentences to be court set the secutively probation. provision Thus, it and made no received that defendant is not an irresistible conclusion the minimum sentence for his convictions. transcript presentence hearing
However, the reveals responded that when asked to introduction into prior proof
evidence of these
convictions. The burden of
prior
Burgett
that
Texas,
initially
convictions are inadmissible under
319) (1967),
31710. McGUIRE v. THE STATE. Ingram, Appellant, McGuire, Edward Lee was convicted of robbery Superior armed in Court of Gwinnett Coun- ty. years, He was sentenced to five served in the penitentiary, Appellant’s years probation. and seven to be served on motion for a trial new appeals. court and he affirm. We prove The state introduced that a Georgia, Buford, convenience store in robbed February working 12,1976. Venable, Robert Lee who was as the clerk at the store the time ofthe testified pulled pistol, store, entered the and took in cash and a carton of Winston cigarettes. $148 Venable testified had a light colored stocking pulled over his face not conceal his identity. He testified that he had grown up with and recognized appellant immediately upon his entering the store. He also testified that he recognized appellant’s *2 voice. Other circumstantial to show that tending appellant perpetrator was the of the in- was troduced at the trial. The evidence sufficient sup- was to port appellant’s conviction.
In one error, enumeration of appellant contends that the trial court erred overruling produce his motion to exculpatory information of specific statements taken from by witnesses the state during the investigation of the case. Appellant filed a motion the nature of an omnibus Brady motion but did not demand an camera inspection of the file by the trial court. The trial court conducted a motion at which the assistant district attorney stated in his place that an inspection by him of thé state’s files disclosed exculpatory material. The trial court produce. motion to Appellant has not shown that the trial court’s denial of his motion prejudiced appellant’s defense. This enumeration of error is controlled Hicks v. 30) (1974) and is without merit.
admitting the testimony Cox, Larry Detective one of the officers, arresting about a conversation between Detective Cox and Mr. Troy Tuck. Detective Cox testified interview, that in an Mr. Tuck that Troy stated he had been riding around with appellant night the after the He robbery. also told the officer appellant was probably then at the house of Mr. Troy brother, Tuck’s Charles Tuck. Mr. Tuck also stated that appellant was probably the perpetrator of the he had robbery, since spending money gas beer and for everybody was unemployed. Appellant’s attorney objected to the admission of this testimony on the was hearsay. Tuck had previously testified at trial that he had not seen after the night robbery. Detective Cox’ testimony, relating pre-trial statements Tuck, made to him those by Troy hearsay. was Mr. Tuck’s earlier inconsistent with statements were admitted under the testimony at the were hearsay the rule. exception inconsistent statements to jury testimony Since the trial court that the charged solely impeachment introduced being Officer Cox find no error. See purposes, two enumerations contends a mistrial or declaring the trial court erred prosecution’s appellant’s prior
question by had testified on direct examination Appellant criminal convictions. On cross examination, the district attorney asked how At many point times he had been arrested. was removed from the courtroom. The trial ruled judge Later that the answer to that was inadmissible. to the instructed during judge that, them ". . . as to to which an sustained, you speculate might answer have been or as to the reason for the *3 a objection. you Since is not suspect any suggested by question insinuation true.” in
The state character appellant put his issue that he had been convicted of by testifying any crime and thereby opened the door to questions by state his concerning prior arrests. Once issue, criminal case his character puts had testifying on direct he never been convicted of crime, see reason be why subjected no he cannot any cross examination like other character witness. See (1976). ap- , pellant was not asked on direct examination He testified that had convictions. he open This does not the door for cross examination about any prior arrests. We the rule in this case that"... apply mere indictment or a charge or an arrest or a acquittal, legal impeachment.” are not methods (3 State, also Whitley v. 177, 188 179 SE2d See Ga. 311) (1973). (203 State, 130 Cowan v. 320 SE2d App. Ga. (1976). State, 140 And cf. Barrett v. 309 App. Ga. 250 present case, we believe the trial judge took corrective measures
adequate to cure this error. Ap- pellant’s at trial interposed an objection to the question before was The question answered. was never answered before the judge instructed general his charge to question. This was sufficient any improper to remove impression have may been created in the minds of the jury. See (2) (172 399) State, Butler SE2d (1) State, also 94 App. Ga. 737 SE2d (5) (1956); 125 Ga. 691 App. SE2d 835) (1972).
allowing the identification appellant by the victim to serve as a basis for conviction. The crux of this is that the victim’s opportunity to observe appellant was so fleeting his identification himof was unreliable. This was an evidentiary resolved by trial. Kendricks v. 231 Ga. 859) (1974); 670 SE2d Smallwood 114 Ga. (3) (151 789) (1966). App. 459 We find no merit this enumeration nor enu- remaining meration of error dealing with the testimony at trial of former wife. Her testimony was relevant circumstantial evidence tending to connect appellant with the crime. Judgment concur, All the Justices except affirmed.
Hill, J., who dissents. — January 19, Submitted November Decided 197 Rehearing January 1977. Williams, Thomas for appellant.
Bryant Huff, District Attorney, Richard T. Bolton, Arthur Winegarden, K. Attorney Susan *4 V. Boleyn, Assistant Attorney for appellee. Staff Justice, dissenting.
I dissent from so much of the court’s opinion as permits the district attorney to ask the defendant how many times he has been arrested and permits the trial court to cure this admitted error by generally that they must not speculate answer might have been to any question to which an objection was sustained.
Once the defendant’s character has been erroneously placed in issue attorney, the error cannot be cured aby subsequent general jury instruction. Butler v. State, supra; supra; supra.
31539. MALONE v. THE STATE.
Hall, We granted certiorari in this case to consider whether Baker v.
(1976), this court’s recent opinion construing Georgia’s homicide statutes with respect issues, to felony murder precludes a charge voluntary on in felony manslaughter murder trial. It does not.
Malone, tried, who has not yet was indicted for felony malice murder and murder in the commission of an The Court of after aggravated Appeals shortly assault. our Baker decision reversed the lower which had sustained Malone’s demurrer to the indictment in the an aggravated death course of assault could not be murder. Malone felony certiorari that we should reconsider and renounce Baker.
An argument strongly urged by Malone is that under Baker mind the state of with which the aggravated assault was committed becomes irrelevant and any resulting murder; death is dis- felony therefore Baker allows a voluntary manslaughter felony murder trial. This is not correct. As the Baker pointed out, we had no there, under of a voluntary manslaughter offense. Here we do.
With respect to instructions given jury, vol- untary manslaughter lesser included offense of (b) murder, felony §§ we read Code Ann. 26-1101