Opinion
42075.
ARGUED JUNE 8, 1966.
DECIDED JUNE 16, 1966.
Assault with intent to murder. Carroll Superior Court. Before Judge Knight.
C. C. Perkins, for appellant.
Wright Lipford, Solicitor General, for appellee.
The defendant was indicted for assault with intent to murder and convicted of assault and battery. The sole enumeration of error complains that the trial court erred in overruling a motion for mistrial after the mother of the prosecutor interrupted the argument of counsel for the defendant to the jury by making the following or similar remarks in the presence of the jury: "That's a lie, you know it's a lie." The record does not disclose the action taken by the trial court although the motion for new trial does disclose that some action was taken and the jury instructed that such remarks were improper. Held:
Where demonstrations occur during the course of a trial it is generally a matter of discretion upon the part of the trial court as to whether the grant of a motion for mistrial is necessary to insure the defendant a fair trial. See Esa v. State, 19 Ga. App. 14 (3) ( 90 S.E. 732); Elliott v. State, 190 Ga. 803 (2) ( 10 S.E.2d 483). It is only where no action is taken, or the jury is not properly instructed, and the demonstration could result in the failure of the defendant to have a fair trial that the discretion of the trial court will be interfered with. See Glenn v. State, 205 Ga. 32 ( 52 S.E.2d 319). In the case sub judice the amended motion for new trial discloses that the trial court did instruct the jury with reference to such outburst but fails to show the actual instructions given, and it cannot be said under such circumstances that the trial court abused its discretion in overruling the motion for mistrial.
Judgment affirmed. Hall and Deen, JJ., concur.