Powell v. State

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN
• Citation: Powell v. State, 236 S.E.2d 779, 142 Ga.App. 641 (Ga. App. 1977)
• Decision Date: 24 June 1977
• Docket Number: No. 3,No. 54096,54096,3
• Parties: Charles F. POWELL v. The STATE

Page 779

236 S.E.2d 779

142 Ga.App. 641

Charles F. POWELL v. The STATE.

No. 54096.

Court of Appeals of Georgia, Division No. 3.

June 24, 1977.

Syllabus by the Court

The defendant-appellant was indicted, tried and convicted of arson, damaging, destroying or secreting property to defraud another. He appeals.

Short & Fowler, Larkin M. Fowler, Jr., Moultrie, for appellant.

H. Lamar Cole, Dist. Atty., Valdosta, for appellee.

DEEN, Presiding Judge.

1. Error is urged in the trial judge's decision to permit a G.B.I. agent to remain in the courtroom after the rule of sequestration had been invoked and to allow the agent to then testify after, rather than before, other state witnesses. The agent was listed as a witness for the state and the appellant, acting pursuant to Larkins v. State, 230 Ga. 418(1), 197 S.E.2d 367, objected at the outset to the presence of the agent. The district attorney informed the court of the agent's status as chief investigator of the crimes with which the appellant was charged and that his assistance would aid in a more orderly presentation of the facts; the judge overruled the appellant's objection and the agent remained. The state proceeded to present its case and called some nine witnesses; thereupon the agent who had been exempted from the rule was called without objection and gave his evidence.

Allowing the agent to remain in the courtroom under these facts was not error. Ross v. State, 135 Ga.App. 169(1-b), 171, 217 S.E.2d 170. But should the agent's testimony have been allowed into evidence after nine other witnesses had been called? The district attorney did not inform the court in seeking exemption from the rule that the agent would be called other than as the first witness for the state. Having secured the agent's presence "the district attorney should present the excepted witness first or explain to the satisfaction of the trial court why the witness cannot be called first." Parham v. State, 135 Ga.App. 315, 321, 217 S.E.2d 493, 498 and cits. And in this regard the case sub judice is distinguished from Walker v. State, 132 Ga.App. 274(2), 208 S.E.2d 5. There was no need for the appellant to object when the district attorney failed to call the agent as his first witness, as the state should have done under Parham. "The appellant in this case could not have known whether the district attorney was going to call the GBI agent even though he was listed on the indictment. A person may assist in the prosecution of a case without being called as a witness." Parham v. State, 135 Ga.App. 315, 320, 217 S.E.2d 493, 498, supra. Where the appellant made his mistake was in failing to object when the agent was called as the tenth witness. Indeed, when the district attorney announced his intention to call the agent and the trial judge asked the appellant for his comments on this procedure, the appellant replied "I have no objection." Under these facts the trial judge properly allowed the agent to testify. Jackson v. State, 233 Ga. 529, 530, 212 S.E.2d 366.

2. The appellant argues two items of testimony placed his character into evidence and that his motions for mistrial should have been granted. First, one officer testified that the appellant, in explaining his whereabouts, stated he had "gone to Tifton to see a married lady." And second, on cross-examination the appellant was asked about his explanation of the events leading to the burning of his home; it was his testimony that certain individuals involved in a stolen property scheme had been informed on by him and that the arson was their revenge. The later incident of examination and testimony in no way implicated the appellant in the theft of goods but merely involved evidence as to his buying a stolen tractor without knowledge, the official investigation and the appellant's information supplied to the authorities leading to arrests.

Neither of the above incidents of testimony implicated the appellant in participation in a crime other than that for which he was on trial; rather it dealt with the appellant's own explanation of the events leading up to the burning of his house. Evidence if otherwise admissible does not become inadmissible because it may incidentally put the appellant's character in issue. Spencer v. State, 236 Ga. 697, 700, 224 S.E.2d 910. And as to the cross-examination of the appellant with regard to the tractor, the trial judge offered to "instruct the jury that they are not to infer any knowledge on the part of the defendant in this case that he could have possibly known that that tractor was stolen at the time that he bought it, and I will instruct them that they are not to impute anything hurtful to the defendant from this testimony, and that it is admitted solely for the purpose of explaining the defendant's knowledge of W. D. Payne and how and why he (the appellant) became an informer for the G.B.I., if, in fact, this evidence does show that." The appellant declined the trial judge's offer to give these cautionary instructions to the jury. There was no error in failing to declare a mistrial after either incident of testimony.

3. As to the arson conviction the appellant enumerates the general grounds and argues his motion for directed verdict should have been granted. The appellant's story was that he unknowingly bought a stolen tractor from an individual and that when the authorities questioned him about the purchase he informed on those from whom he bought it, leading ultimately to their arrest; he testified as to threats he had received as a result of this activity. The evidence shows that on the date of the fire the house was stripped of most furnishings and that it had been extensively prepared for burning. Gasoline was poured throughout and cloth had been strewn from room-to-room and up the stairs to enhance flammability. The evidence amply shows arson by someone. The appellant's family was out of town at the time of the fire. The appellant showed that at the time the fire was...