Gamble v. State, 53197

• Decision Date: 17 February 1977
• Docket Number: No. 53197,No. 1,53197,1
• Citation: 233 S.E.2d 264,141 Ga.App. 304
• Parties: Geraldine GAMBLE v. The STATE
• Court: Georgia Court of Appeals

Page 264

233 S.E.2d 264

141 Ga.App. 304

Geraldine GAMBLE v. The STATE.

No. 53197.

Court of Appeals of Georgia, Division No. 1.

Feb. 17, 1977.

E. Kontz Bennett, Jr., Waycross, for appellant.

Dewey Hayes, Dist. Atty., M. C. Pritchard, Asst. Dist. Atty., Waycross, for appellee.

McMURRAY, Judge.

Geraldine Gamble and co-defendant Higgins were indicted for motor vehicle theft. After the cases were severed Gamble was tried, convicted, and sentenced to seven years in prison. Defendant appeals. Held:

1. Defendant contends that the court erred in permitting the jury to disperse after it had been selected but prior to being sworn. This appears to be a case of first impression in this state. The oath in question is that prescribed by Code § 59-709 which requires the jury to ". . . well and truly try the issue formed . . . and a true verdict give according to evidence . . ." Administration of this oath to the jury is preparatory to submitting to them, as an organized jury, the trial of the defendant. The oath having been administered to the jury in this case prior to the presentation of any evidence there was no error. See Roberts v. State, 65 Ga. 430(2) (431, reprint); Brown v. State, 141 Ga. 5, 6(4), 80 S.E. 320. Here no prejudicial or harmful error has been shown. Hall v. State, 8 Ga.App. 747, 750(3), 70 S.E. 211; Midland Properties Co. v. Kennedy, 100 Ga.App. 37, 38, 110 S.E.2d 120. Although no prejudicial or harmful error was shown in the case sub judice we deem it the better practice to administer the statutory oath to the jurors comprising a trial jury prior to their dispersing even though there has been no presentation of the evidence at that stage of the trial proceedings.

2. The defendant arrived in Ware County in the company of Higgins and another companion. The pickup truck in which they arrived was left behind when they departed in the allegedly stolen automobile.

The defendant enumerates as error the refusal of the court to rebuke the assistant district attorney for persisting in going into the area of defendant's acquisition of the pickup truck. The state had offered to prove through Higgins, who testified as a witness for the state, that the pickup truck had been stolen in Florida. This offered proof was excluded as irrelevant. Later, on direct examination, the defendant testified that she did not know why she and her companions would steal an automobile, as they had a truck which was "in good shape." Thereafter, during cross-examination, defendant was asked where she and her companions got the truck. Defendant's attorney interposed with his objection, and this question was not answered. Defense counsel then asked the court to rebuke the assistant district attorney in the presence of the jury for bringing up again the question of where defendant and her companions had obtained the pickup truck. But, having chosen to testify, the defendant was subject to a thorough and sifting cross-examination. Code Ann. § 38-415 (Ga.L.1973, p. 292, 294); Code § 38-1705; Carr v. State, 95 Ga.App. 513, 517(4), 98 S.E.2d 231. We see no error in the assistant district attorney asking where the defendant and her companions had gotten the truck.

Defendant argues that the state's inquiry into where she and her companions obtained the pickup truck put her character in issue before she chose to do so, therefore, amounted to a statement of prejudicial matter before the jury and that consequently the court's refusal to rebuke the assistant district attorney was prejudicial error under Code § 81-1009. A question asked may constitute a statement of prejudicial matter. See Stanley v. State, 94 Ga.App. 737, 96 S.E.2d 195. But in that case the language of the question and person to whom it was asked suggested an answer which would have put defendant's character in...