Carter v. State
| Decision Date | 03 April 1963 |
| Docket Number | No. 39997,No. 2,39997,2 |
| Parties | Jesse CARTER v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
It is cause for mistrial in a criminal case for State's counsel to comment upon defendant's failure to testify and the trial court committed reversible error in denying defendant's motion for mistrial, and, thereafter, his motion for new trial based upon such ground.
Jesse Carter was tried and convicted in the City Court of Sandersville on an accusation charging him with the offense of misdemeanor in the drawing, uttering and delivery of a worthless check with intent to defraud. The defendant's motion for new trial, as amended, abandons the general grounds but insists upon 3 special grounds. The trial court, after hearing arguments, on December 17, 1962, overruled defendant's motion and entered judgment denying defendant's motion for new trial on each and every ground. To said judgment adverse to him the defendant excepts, assigns error and brings the case here for review.
Marvin Hartley, Jr., Casey Thigpen, Sandersville, for plaintiff in error.
Thomas A. Hutcheson, Sol., Sandersville, for defendant in error.
1. Defendant, plaintiff in error here, specifically abandons his general grounds of the motion for new trial but insists upon 3 special grounds thereof. In special ground 1, defendant contends that the court erred in failing to grant his motion for mistrial following certain improper and prejudicial remarks made by State's counsel in his concluding argument to the jury, as follows: 'The defendant in this case made a statement to the jury--then his counsel asked him some questions--you perhaps wondered why I didn't ask him any questions--it was because the law does not allow the solicitor to ask defendant any questions, unless the defendant offers or gives the solicitor an opportunity to cross-examine him--in this case I was not given an opportunity to cross examine the defendant.' Code § 38-415, Ga.L.1962, p. 133, provides in part as follows: 'The failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure.'
The record in this case discloses that the court did, in his charge to the jury, attempt to clarify and rectify the statement made by State's counsel by withdrawing same from the jury's consideration. However, under the clear mandate of Code Ann. § 38-415, supra, such efforts on the part of the trial judge, once the statement was made, were insufficient to remove the harm done by such statement, and it was reversible error to deny defendant's motion for mistrial, and, thereafter, his motion for new...
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