Summary
concluding that prosecutor's references to the victim as a married man who would never get to see his newborn child were improper
Summary of this case from State v. ToddOpinion
53776.
SUBMITTED APRIL 12, 1977.
DECIDED APRIL 29, 1977.
Voluntary manslaughter. Jefferson Superior Court. Before Judge McMillan.
Charles Z. Donaldson, for appellant.
H. R. Thompson, District Attorney, Charles W. Cook, Assistant District Attorney, for appellee.
The defendant appeals his voluntary manslaughter conviction. Held:
1. During the course of the prosecuting attorney's argument to the jury he stated with reference to the victim "he was a married man. His wife just had a baby, but he's not here to see that." Counsel for the defendant interposed an objection and moved for a mistrial on the grounds that there had been no evidence to that effect. The trial judge then addressed the assistant district attorney: "Well, you owe him an apology, and I won't grant a mistrial, but if that's not in the evidence, don't go outside the record and argue anything that's not in the record. [By the Assistant District Attorney] All right, I apologize. [By the court] And withdraw the statement... [By the Assistant District Attorney] I withdraw that statement. [By the court] If it was not within the evidence, then you're not permitted to discuss anything that is not within the evidence. Disregard the statement, ladies and gentlemen. It was an improper remark by the Assistant District Attorney."
Sufficient curative action was taken by the trial judge and it was not error to refuse to grant a mistrial. Campbell v. State, 81 Ga. App. 834, 839 (2) ( 60 S.E.2d 169); Benefield v. State, 140 Ga. App. 727, 730 (3) ( 232 S.E.2d 89); Wheeless v. State, 92 Ga. 19 (1) ( 18 S.E. 303); Hulsey v. State, 172 Ga. 797, 798 (5) ( 159 S.E. 270).
2. An excerpt from the charge with regard to incriminatory admissions was not error for the reasons assigned.
Judgment affirmed. Shulman and Banke, JJ., concur.