Bowen v. State

• Decision Date: 21 April 1971
• Docket Number: No. 46101,No. 1,46101,1
• Citation: 123 Ga.App. 670,182 S.E.2d 134
• Parties: Willie E. BOWEN v. The STATE
• Court: Georgia Court of Appeals

Page 134

182 S.E.2d 134

123 Ga.App. 670

Willie E. BOWEN v. The STATE.

No. 46101.

Court of Appeals of Georgia, Division No. 1.

April 21, 1971.

Guy B. Scott, Jr., Athens, for appellant.

Thomas W. Ridgway, Dist. Atty., Monroe, John T. Strauss, Athens, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

It is error in a criminal case for the State to place the defendant's character in issue where he has not voluntarily chosen to do so. Code § 38-202. On a motion for mistrial based on such testimony the trial judge has a large discretion and, where the improper matter has in fact been volunteered by a witness by an answer not responsive to the question it has frequently been held that action on the part of the trial court in ruling it out and instructing the jury to disregard it, or in reprimanding and cautioning the witness, is a sufficient corrective procedure, although 'the court should by every means possible attempt to eradicate the prejudicial remark from the jury's consideration, and, if there is any likelihood that such means as he uses will not be completely successful, he should grant a timely motion for a mistrial.' Hollis v. State, 97 Ga.App. 145(1), 102 S.E.2d 610. As stated in Willingham v. State, 118 Ga.App. 321(2), 163 S.E.2d 317, there are some remarks which, even though voluntary, are of such a prejudicial nature that a mistrial becomes necessary; there are others (constituting a majority) where the trial judge exercises his discretion, on motion for mistrial, of ruling out the illegal evidence and taking measures to disabuse the mind of the jurymen of its content, in which case the only question before us is whether the lesser measure constitutes an abuse of discretion; but where the remark does in fact place the defendant's character in issue and the trial court after a motion for mistrial based thereon takes no action whatever, the denial of the motion is error. See Brooks v. State, 183 Ga. 466, 188 S.E. 711; DeFreese v. Beasley, 114 Ga.App. 832(3), 152 S.E.2d 772. In the present case the State's witness Rogers, a confessed accomplice as to Count 2 of the indictment, was shown two indictments against himself, one for larceny showing a conviction and one for burglary showing his plea of guilty. He identified these documents. The next question by the State was: 'How long have you known Willie Bowen' to which the witness replied: 'The first time I met Willie was here in jail, and if I am not mistaken it was in 1953. At the time that first one was made.' Defense counsel asked that the jury be retired. In its absence a motion for mistrial was made and overruled. No cautionary instructions of any sort were given nor was the testimony ruled out. As we read the record there could be no doubt but that 'the first one' referred to the conviction of Rogers of which he had just testified, and it was at that time that he met the defendant 'in jail.' The objection was obviously directed to this fact and the admission of this testimony placed the defendant's character in issue as one who had been in jail for prior offenses. It constituted reversible error in the absence of any corrective measures. Bacon v. State, 209 Ga. 261, 71 S.E.2d 615.

2. It appears from the supplemental certificate of the trial judge that after the jury had returned a verdict of guilty a trial was had as to the sentence to be imposed. During argument, defendant's counsel stated: 'This is not the type of offense for which a defendant can get probation.' The State objected, and the court...