Fowler v. State
| Decision Date | 15 June 1965 |
| Docket Number | No. 2,No. 41378,41378,2 |
| Parties | Robert W. FOWLER v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where a motion for mistrial is denied but in doing so the judge instructs the jury that they are to disregard statements made by counsel in his argument which were the basis of the motion, and the motion is not renewed, no error appears.
2. Evidence of an offer by the defendant in a bastardy prosecution to give the prosecutrix $200 for her hospital bill is not evidence of an offer in compromise and settlement of the bastardy proceeding, there having been no condition attached to the offer that it was, if accepted, to be in settlement of the defendant's liability or in settlement of any pending or proposed bastardy proceeding against him.
Robert William Fowler was convicted in the Criminal Court of Fulton County of the offense of bastardy. In due time and in due form he made application to Fulton Superior Court for the writ of certiorari, assigning error on what amounts to the general grounds in a motion for new trial and upon seven special grounds. After hearing on the application the writ was denied and the application dismissed. To that order the defendant excepts.
William Edward Spence, Atlanta, for plaintiff in error.
Lewis R. Slaton, Sol. Gen., Carter Goode, William E. Spence, Frank A. Bowers, Atlanta, for defendant in error.
In his brief defendant's counsel has urged only two of the special grounds; thus all others are deemed abandoned. Tift v. McCaskill, 171 Ga. 289(3), 155 S.E. 192; Lander Motors, Inc. v. Lee Tire & Co., 89 Ga.App. 194, 200, 78 S.E.2d 839.
1. One of the special grounds urged is that the solicitor in his opening statement to the jury asserted that the defendant had discussed with the prosecutrix some form of settlement, and that the court erred in refusing a mistrial on account of that remark by him.
The record discloses that when the motion for mistrial was made the court instructed the jury to disregard the statement of the solicitor and then overruled the motion. The motion for mistrial was not renewed. 'If defendant's counsel was not satisfied with such action by the judge, he should have renewed his motion promptly and by his failure to do so the judge was in our opinion authorized to conclude that defendant's counsel was satisfied with the action he had taken.' Purcell v. Hill, 220 Ga. 663, 141 S.E.2d 152. Accord, Barnes v. State, 111 Ga.App. 348(1), 141 S.E.2d 785.
2. The other special ground assigns error on the admission, over timely objection, of testimony that the defendant had offered the prosecutrix the sum of $200.
The prosecutrix testified that beginning about July 27, 1963, she had sexual intercourse with the defendant once or twice a week for some time and, as a result, became pregnant. Her last menstrual period was August 23. She went to to the doctor November 1 and was informed of her pregnancy. Thereafter she saw the defendant and told him of it. He told her that 'he hated it.' She saw him again and talked with him about it:
The objection lodged to the testimony about the offer of $200 was that
While a bastardy proceeding may be settled, Jones v. Peterson, 117 Ga. 58, 43 S.E. 417; Gresham v. Hewatt, 2 Ga.App. 71, 58 S.E. 309; Sybilla v. Connally, 66 Ga.App. 678, 18 S.E.2d 783, yet it is improper to admit evidence of a settement or of an offer in compromise and settlement of the proceeding at the trial. Simmons v. State, 98 Ga.App. 159, 105 S.E.2d 356. The only question here, then, is whether this evidence was an offer in compromise and settlement of the bastardy proceeding. The judge, in overruling the objection, observed that there was nothing to indicate that the offer was made in compromise of liability on the defendant's part or in settlement of any proceeding or proposed proceeding against him for bastardy--that it was simply an offer on his part to give the prosecutrix $200 to pay on the hospital bill.
We agree with the judge. The offer was not conditioned, if accepted, upon being a compromise and settlement of the proceeding, and hence does not come within the proscription of Simmons v. State, 98 Ga.App. 159, 105 S.E.2d 356, supra, or of Code § 38-408.
It would appear that the offer was one to pay the hospital bill rather than an offer to settle or compromise the defendant's liability or the prosecutrix's right to proceed with a bastardy prosecution. Consequently, the evidence was admissible. Cooper v. Jones, 79 Ga. 379, 4 S.E. 916; Thompson v. Hastings & Co., 18 Ga.App. 765, 90 S.E. 729; ...
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