Dеfendant was indicted for the offense of abandonment (wilfully and voluntarily) of his illegitimate child and leaving said child in a dependent condition. He was notified by the clеrk of the superior court of an arraignment date and thereafter he waived formal arraignment and pleaded not guilty in the Superior Court of Wayne County, Georgia. The superior court, noting that the case was a misdemeanor, transferred it to the State Court of Wayne County.
Whereupon defendant moved that the case be dismissed by the State Court of Wayne County since he contended that issue was joined in the superior court and that he should not be tried in the state court. This motion was overruled.
The case proceeded to trial, and the jury found the defendant guilty. He was sentenced to serve 12 months, but the sentence was "suspеnded indefinitely” on condition that he pay support for the child at the rate of $25 per week beginning June 22, 1979, and continuing until the child marries, becomes self-suppоrting, dies, or becomes 18 years of age, said payments to be made to the state probation office, Jesup, Georgia. Defendant appeаls. Held:
1. The first and second enumerations of error are concerned with the status of the case by reason of its transfer from the Superior Court of Wayne County tо the State Court of Wayne County, both courts having. *355 concurrent jurisdiction in this instance. Defendant contends that by reason of his plea of not guilty that the issue was joinеd in the superior court and the case could not be transferred to the state court. However, counsel cites no authority for this contention.
The superior court had ample authority to transfer the case to the state court for trial. See
Dismuke v. State,
Code Ann. § 26-507 (Ga. L. 1968, pp. 1249, 1267) clearly states that а prosecution is barred if the accused was formerly prosecuted for the same crime, based upon the same material facts, if such formal prosecution was terminated improperly after the juiy was impaneled and sworn; or, in a trial before a court without a jury, after the first witness was sworn but before findings werе rendered by the trier of facts; or, after a plea of guilty was accepted by the court. None of this has occurred here. These enumerations оf error are not meritorious.
2. During the trial one of defendant’s witnesses testified that he had had sexual intercourse with the prosecutrix on more than one occasion. After this witness had been examined by counsel for both parties the jury was excused, and the court made an inquiry of the witness as to whether he was familiar with thе law of fornication in the State of Georgia and whether or not he realized that he had admitted under oath that he had violated the law by having sexual relations with the prosecutrix without being married. The trial court then inquired of defense counsel whether this witness was needed further. Whereupon, defense counsel resрonded, "No, sir.” The witness was then placed in the custody of the sheriff, but the outcome as to the witness is unknown since it involved a matter other than the trial of this casе. At that time,
*356
defense counsel moved for a mistrial in that the court had prejudiced his client’s case. It is further noted that the court’s inquiry of the witness, inquiry of defense counsel, the taking of the witness into custody, defense counsel’s motion for mistrial and the court’s denial thereof, all transpired out of the presence of the jury. In
Thompson v. State,
3. During the argument the solicitor stated that the defendant himself was here and could have testified but did not. This was a comment by the solicitor which is violative of Code Ann. § 38-415 (Ga. L. 1962, pp. 133, 134; 1973, pp. 292, 294). Whereupon counsel for the defendant moved for mistrial. The motion for mistrial was ovеrruled but when the jury, which had been excused during this motion and the colloquy between counsel and the court, returned, the trial court instructed the jury to disregard the portion of the solicitor’s argument in which he stated that the defendant had failed to testify "because in a criminal case the defendant is not required to testify. I feel thаt you do need to strike or disregard that portion of his closing argument.” Counsel for defendant here contends that a further rebuke of the solicitor was needed as the comment was clearly a deliberate act on the part of the solicitor "done in an effort to prejudice the minds of the jury and flies in the face of the right of one charged with a crime to remain silent and have his guilt proved.” Counsel further argued that the rather mild instruction by the court for them to disregard it did not rеmedy the situation but more than likely compounded it. However, this court was not present, and we cannot say that the trial court abused its discretion in failing to reprimand the solicitor other than in advising the jury to disregard this argument. "[A] new trial will not be granted unless it is clear that such action failed to eliminate from the consideratiоn of the jury such improper statements.”
Moore v. State,
4. In arguments to the jury, attorneys have wide latitude in commenting upon evidence in the record and drawing reasonable infеrences and conclusions therefrom.
Georgia Power Co. v. Walker,
While there appears to have been no direct evidence here that thе sleeping child in the arms of the prosecutrix was in fact the abandoned child, nevertheless, the implication is clear that the infant sleeping in the lap оf its 18 year old mother was obviously the child in question. *358 Counsel for the defendant in his argument had pointed out to the jury that the father’s hair was brown and the baby’s hair was blond.
For thе same reason as stated above in Division 3, we do not believe that the trial court has abused its discretion in instructing them to disregard the remarks of the attorneys аnd in particular the statement of the solicitor alluding to the child and for the jury to disregard all remarks about the sleeping child. Further, defense counsel may have "opened the door” by reference to the child in the courtroom. Compare
Rivers v. State,
Judgment affirmed.