Bowman v. Bowman
| Decision Date | 13 April 1973 |
| Docket Number | No. 27694,27694 |
| Citation | 230 Ga. 395,197 S.E.2d 372 |
| Parties | Roger Otto BOWMAN, Sr. v. Marchita Jenkins BOWMAN. |
| Court | Georgia Supreme Court |
Frank M. Gleason, Rossville, for appellant.
George W. Adams, Rossville, for appellee.
Syllabus Opinion by the Court
Roger Otto Bowman, Sr., appeals a divorce decree dissolving his marriage to Marchita Jenkins Bowman based on a jury verdict which includes an award of $20 per week for child support, plus 50% interest in a farm and $20,000 for alimony. Held:
1. Three enumerations are argued on the basis that that throughout the trial and by every possible means the plaintiff undertook to apprise the jury that the trial judge had ordered the defendant to pay the plaintiff $1,700 alimony.
The defendant on cross examination made the statement that he had deducted $1,700 on a tax return as alimony. Counsel for the defendant then moved for a mistrial on the ground that 'anything concerning a temporary order was improper.' The trial judge overruled the motion and instructed the jury to disregard 'any question and answer with respect to any type of court order.'
Thereafter, the plaintiff on direct examination, in explaining her tax return, stated that 'the money that was paid as alimony was included in that income,' and although error is asserted on appeal in this instance because the plaintiff deliberately injected testimony of the previous award, the transcript fails to reveal any objection.
Later, on cross examination, but not in response to the question asked, the plaintiff stated, 'All I had gotten from Roger since we separated is what the court had ordered him to give me.' The court sustained an objection to this statement but again refused to declare a mistrial for the defendant. Instead, he instructed the jury to disregard the statement, and instructed the witness, 'not to make any more statements with respect to any order of the court.'
An instruction to the jury to disregard evidence is tantamount to an exclusion. Salter v. Williams, 10 Ga. 186, 190. 'The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge's discretion will not be interferred with.' Salmon v. Salmon, 223 Ga. 129(1), 153 S.E.2d 719. See 88 C.J.S. Trial § 36(b), p. 96.
Enumerations 2, 3, and 4 are without merit.
2. It is asserted that the trial judge erred in striking the affidavit of a juror which, it is argued, explains, but does not impeach, the verdict. The gist of this affidavit is to the effect that the jury, contrary to the evidence, believed that the defendant owned certain stock of a market value of $40,000, that he had not satisfactorily accounted for the stock or its value, that the jury believed that plaintiff was entitled to 50% of the value, and that 'if the majority of the jurors had not thought that the stock was worth $40,000 they would not have awarded Mrs. Bowman a verdict for $20,000, but would have confined the award to a one-half interest in the farm.' The affidavit was procured to be used as...
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