*1 THE STATE. 35228. SHARPE 1954. for in error. Johnson, Jr., plaintiff & J. Wade Graham, Jackson Solicitor-General, Roger Lawson, H. contra. Appeals a before Court
Per Curiam. This case was App. 876 occasion. See previous a reversed the verdict on account of This court trial defendant was On the court. the second rape. again He filed again with intent to convicted of assault special grounds. for new and two a motion ‘ provisionally temporarily admitted Where 1. evidence by ruling object invoked by and no further trial court for court. ing question is raised party, no Special ground is without assigns ground 2 error because the court erred M. S. Peterson a mistrial because of granting a for State. as witness reference to where the witness
propounded to answered: “I had known him around house. him the chain had seen his seen for time gang when he was for motion for the defendant moved counsel for the defendant denied. Counsel state “I make motion for mistrial this case ment to court: that this witness because it account prejudicial and it inadmissible. It is and harm absolutely incompetent testimony ful this case.” the Court: asked of his where he had him and happened to make the he that him on the chain Now statement was the State and was answer to the that will not consider that statement had seen him the consider for answer the witness to make
and it is be done sometimes. *2 not to consider court has that state- and I do ment so now. not consider the That this witness this defendant in by you admissible evidence and will not be considered at I all. With this overrule motion to declare mistrial, gentlemen. Let me make other one statement. Under law, put gentlemen, our evidence for the jury of character of the got any authority not admissible. The State has at all any put testimony jury with reference to the character of the defendant. That is the reason I excluded the being That would indi- rectly put his in evidence and the law doesn’t allow grounds that the State can’t his character in I evidence before the excluded I am saying it. attempt will know that his character not to be considered You consider the defendant’s character at all.”
We think that the court erred in to declare mistrial. clearly The statement of the witness was very inadmissible and prejudicial to the defendant. The court’s remarks to the did refer only of the offense but to the fact defendant’s The case awas close one questions. the facts as to several One of these was the identity defendant; of the another was the defendant’s inten- might tions. easily have influ- enced the conclusions of the or on either of the both above questions. they We cannot sure whether not, did or but the justice play grant interests of and fair demand the aof new trial ground. on passed are not on. denying
The court erred the motion for a new trial. Judgment Quillian reversed. C. Felton, J., Townsend, Carlisle, Nichols, JJ., J., concur: Gardner, P. dissents. dissenting. P. J., majority opinion I concur in the Gardner, as to division In for the reasons: division dissent App. 876), (Sharpe v. was here before
case when it amount evidence. will related considerable this court any of evidence as part testimony repeat that only part of will add thereto general grounds, but the husband of the woman testimony witnesses, of one “My is: wife been That evidence alleged assaulted. wrapped Buddy Sharpe had his hand up screaming. woke leaning the bed with her left over sleeve, her she wrapped pushed gown, had his in her down. He hands head standing her.” upon edge of the bed over with his knee , positively identified the husband as a The defendant the wife of Conner, had attacked Mrs. Truman person who argument main counsel for witness. The the defendant Dorsey 135), regarding Ga. 477 based on assaulting opinion person a female. the intent supra, the instant case are facts essen *3 subsequent tially case based different. So are the facts realize in a case of decision. We the character (1) (2) an prove: assault; must an instant case the State (3) knowledge female; purpose intent have carnal to carry against an intent force and to into effect such v. State, 263; female. Carter 35 consent of the Ga. (18
State, 16; Ga. Jackson v. 91 322 48 Ga. S. E. 44 (169 App. 25); 203); R. 46 732 Am. St. Davis v. Ga. App. Patrick that each this
Necessarily, it is true case of sort must stand authorized, amply its own factual were bottom. evidence, assault, find defendant made the under the to that the knowledge of the and did with intent to have carnal fe- male, purpose carry and that he had a this intent effect forcibly against her will. assigns error ground because court erred
granting evidence of M. S. because Peterson as witness for the State. propounded with reference to the witness where had known the defendant. witness answered: had “I seen him around his house. I him on chain gang time for when he was
counsel for the made a defendant motion for a mistrial, which denied the court. Counsel for the defendant “I statement to the court: make a motion for a mis- in this on account case of that statement witness because it is and it is inadmissible. prejudicial and harmful to absolutely in- competent testimony in case.” Court: asked about his of this and in as to where he had seen him and he happened make the statement him had Now that statement was not It the State and was in answer have already you instructed will not consider that had seen him on not consider that is not answer for the witness to it make and that will be done sometimes. The court has not to consider that statement and I do so now. You will not consider the statement that this seen this defendant on That is not admissible in evidence and will not be With this I overrule the motion mistrial, to declare a gentlemen.”
By the Court: “Let make one other statement. Under our law, gentlemen, into evidence for the consideration of the
is not admissible. got The State has authority at all put any testimony with reference to the char- acter of the defendant. That *4 is the reason I excluded the statement about indirectly would put his character in evidence and the law doesn’t allow his character in evidence saying excluded it. I am know any attempt his character in evidence is be not to at all. You will not consider the defendant’s character at all.”
Under all the facts and circumstances, full special court and the admonitions the court to I do neces- a mistrial. erred in the court think that con- judge. This the trial was obviated sity mistrial for a is without tention affirmed. case should opinion, K. Garrison al.
35279. R. Inc. v. et Company, Haskew &