Opinion
60958, 60959.
DECIDED JANUARY 8, 1981.
Burglary. Burke Superior Court. Before Judge Pickett.
Jerry M. Daniel, for appellant.
Richard E. Allen, District Attorney, Steve Beard, Assistant District Attorney, for appellee.
Bobby Bryant and Robert Williams appeal their jury conviction of burglary. Held:
The defendants do not contest the sufficiency of the evidence to uphold their convictions. They enumerate but two errors, each relating to questions of the trial judge to the defendants while testifying on the merits. They allege that "by his interference during the trial by expressing opinions as to the facts which have or have not been proved as well as making disparaging remarks during the testimony . . . which were emphasized by facial expressions and other physical gestures causing the audience to burst out in laughter on two occasions" that the defendants were deprived of a fair trial.
1. We have examined the record of trial thoroughly and find no prejudicial conduct of the trial court. A trial judge may, to elicit the truth or clarify the evidence, propound questions to a witness, providing that he does not violate the proscription of Code Ann. § 81-1104 (Code § 81-1104) against expressing or intimating his opinion as to what has or has not been proved, or as to the guilt of the accused. Deese v. State, 137 Ga. App. 476 (2) ( 224 S.E.2d 124). "The extent to which the examination conducted by the court shall go is a matter within the court's discretion." Eubanks v. State, 240 Ga. 544, 547 ( 242 S.E.2d 41); accord: Wilson v. State, 229 Ga. 224 (2) ( 190 S.E.2d 78). Two questions were asked of one defendant and three questions were asked of the other defendant. All sought clarification of an issue or the evidence. See Perdue v. State, 147 Ga. App. 648 (9) ( 249 S.E.2d 657). In none of the questions asked do we find that the trial court left his position of impartiality to the extent that an unfair trial resulted. Ingram v. State, 134 Ga. App. 935 (7) ( 216 S.E.2d 608); accord: Karavos v. State, 128 Ga. App. 268 (1) ( 196 S.E.2d 355); Wheeler v. State, 220 Ga. 535 (3a) ( 140 S.E.2d 258). We find no abuse of discretion.
2. "While it does not appear that the court committed harmful error in asking the questions, the failure of the [defendants] to object to the questions or to move for a mistrial at the trial estopped him from raising an objection on appeal." Ezzard v. State, 229 Ga. 465 (2) ( 192 S.E.2d 374); State v. Griffin, 240 Ga. 470 ( 241 S.E.2d 230); Driggers v. State, 244 Ga. 160 (2) ( 259 S.E.2d 133). As counsel did not object to the questions being asked, he may not now assert error. Defendants' enumerations of error are without merit.
Judgments affirmed. Shulman P. J., concurs. Carley, J., concurs in Division 2 and in the judgment.