Summary
In Howard v. State, 229 Ga. 839 (1) (195 S.E.2d 14) (1972), cert. den. 411 U.S. 950 (1973), this court held that denial of a mistrial was not error where the district attorney during closing argument commented on the defendant's failure to make a statement and the trial court's curative action eliminated from the consideration of the jury such improper comment.
Summary of this case from Lingerfelt v. StateOpinion
27564.
ARGUED NOVEMBER 14, 1972.
DECIDED DECEMBER 4, 1972.
Rape. Jones Superior Court. Before Judge Carpenter.
Briley Marchman, Joseph H. Briley, for appellant.
Joseph Duke, District Attorney, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Assistant Attorney General, Frank M. Palmour, Deputy Assistant Attorney General, for appellee.
This is an appeal after a conviction of rape. A motion for new trial, as well as a motion for a judgment non obstante veredicto was filed in the trial court. The motion for new trial as amended was overruled by the trial court, and according to the amended notice of appeal the defendant expressly abandoned the motion for judgment non obstante veredicto in open court. Held:
1. During the closing argument a motion for mistrial was made on the ground that the district attorney commented on the failure of the defendant to make a statement. The exact language is not shown by the transcript. According to colloquy at the time the motion for mistrial was made the district attorney stated that such was the defendant's right and he was not criticizing him. The trial court rebuked the district attorney and instructed the jury to disregard the statement.
"[T]his court has repeatedly held that if the trial judge acts immediately, and in the exercise of his discretion takes such action as in his judgment prevents harm to the accused as a result of such improper statements, a new trial will not be granted unless it is clear that such action failed to eliminate from the consideration of the jury such improper statements. Brown v. State, 148 Ga. 264, 266 ( 96 S.E. 435); Johnson v. State, 150 Ga. 67 (1) ( 102 S.E. 439); Waller v. State, 164 Ga. 128 (4) ( 138 S.E. 67)." Nelson v. State, 187 Ga. 576, 583 ( 1 S.E.2d 641); Spell v. State, 225 Ga. 705, 708 ( 171 S.E.2d 285). See also Moore v. State. 228 Ga. 662, 664 ( 187 S.E.2d 277). No abuse of discretion appears in the present case. The decision in Carter v. State, 107 Ga. App. 571 ( 130 S.E.2d 806), relied upon by the defendant, relates to a statement by the State's attorney commenting on the failure of the defendant to be sworn and submit to cross examination and is, therefore, not applicable to the present case.
2. Where, as in the present case, a request to charge is incomplete and the trial court after giving such requested charge gives additional instructions to complete the charge, such additional instructions are not error because also repetitious of the same or similar language found elsewhere in the complete charge. Compare Patterson v. State, 207 Ga. 357 (2) ( 61 S.E.2d 462); Baker v. State, 88 Ga. App. 894 ( 78 S.E.2d 357).
3. An enumeration of error which is expressly abandoned need not be considered.
4. The jury was authorized by the evidence to find that the defendant broke into the home of the prosecutrix, threatened her, threw her on a bed and raped her. Her testimony was corroborated and the verdict of guilty was authorized by the evidence.
Judgment affirmed. All the Justices concur.