Opinion
25441.
SUBMITTED OCTOBER 14, 1969.
DECIDED NOVEMBER 6, 1969.
Robbery. Spalding Superior Court. Before Judge McGehee.
Margaret Hopkins, James R. Venable, H. G. McBrayer, Jr., for appellant.
Ben J. Miller, Andrew J. Whalen, Jr., District Attorneys, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, William R. Childers, Jr., Assistant Attorneys General, for appellee.
1. If defendant's counsel is not satisfied with the action taken by the trial court in response to a motion for mistrial, such motion must be promptly renewed in order to later raise such contention on appeal.
2. Where in ruling on an objection to evidence the trial court, in a colloquy with counsel, repeats such evidence, it is not an expression of opinion in violation of Code § 81-1104.
3. Where in the formal charge, in order to pinpoint evidence which has been excluded, the judge in instructing the jury not to consider certain evidence repeats its substance, it is not an expression of opinion in violation of Code § 81-1104.
SUBMITTED OCTOBER 14, 1969 — DECIDED NOVEMBER 6, 1969.
This is the second appearance of this case in this court. On the first appearance the defendant's conviction for robbery by use of an offensive weapon was set aside and the case remanded for a new trial because the testimony of an accomplice was not sufficiently corroborated. Pritchard v. State, 224 Ga. 776 ( 164 S.E.2d 808). On the second trial the jury returned a verdict of guilty with a recommendation of mercy by the jury and a life sentence was imposed upon the defendant. No question as to the sufficiency of the evidence is raised in the present appeal. The sole questions raised relate to the refusal of the trial court to grant a mistrial and the judge's allegedly expressing his opinion as to what had been proved in violation of Code § 81-1104.
1. The first witness called for the State, an admitted accomplice of the defendant, when asked about a conversation with the defendant, volunteered information which was not responsive to the question asked. The defendant's counsel moved for a mistrial which was overruled, but the court did instruct the jury that the answer was not responsive and that they should disregard it completely, that such issue was not involved in the case and since the answer was not responsive to the question asked he would not reprimand the State's attorney.
"If defendant's counsel was not satisfied with such action by the judge, he should have renewed his motion promptly and by his failure to do so the judge was in our opinion authorized to conclude that defendant's counsel was satisfied with the action he had taken." (Emphasis supplied. Purcell v. Hill, 220 Ga. 663, 664 ( 141 S.E.2d 152). The defendant's counsel did not promptly renew the motion for mistrial and a mere general renewal of all motions and objections made during the course of the trial at the conclusion of all evidence is not a prompt renewal of the motion for mistrial. Accordingly, enumerations of error 1 and 2 are without merit.
2. Enumeration of error numbered 3 complains that the trial court violated the provisions of Code § 81-1104 and expressed an opinion as to what had been proved in the case.
On two occasions during the trial, after counsel for the defendant invoked a ruling by the trial court, a colloquy between the court and counsel ensued and the judge, in explaining his ruling to counsel for the defendant, stated the basis for his decision which included his recollection as to what a witness had testified. It is on such statements that complaint is made in this enumeration of error and not to the ruling by the court as to the admissibility of evidence. In neither instance does it appear that any objection or motion for mistrial was made as the result of such colloquy. Accordingly, under decisions exemplified by Coates v. State, 192 Ga. 130 (3) ( 15 S.E.2d 240); Calhoun v. State, 210 Ga. 180 (3) ( 78 S.E.2d 425); and Gravitt v. State, 220 Ga. 782, 785 ( 141 S.E.2d 893), no question for decision is presented by this enumeration of error.
3. The remaining enumerations of error complain of an excerpt from the judge's charge where he cautioned the jury not to consider evidence which had been ruled out of the case and in doing so repeated the gist of the testimony which had been ruled out. The contention is made that such instruction amounted to an expression of opinion in violation of Code § 81-1104.
The failure to instruct the jury in the formal charge not to consider such evidence in the absence of a timely request to do so would not have been error ( Farmer v. State, 223 Ga. 364, 367 ( 155 S.E.2d 14) and citations), nor is it error to instruct the jury not to consider excluded evidence. See Whitaker v. State, 159 Ga. 787 (4) ( 127 S.E. 106). And such a charge is not an expression of opinion as to what has been proved on the trial of the case. Wyatt v. State, 18 Ga. App. 29 (1) ( 88 S.E. 718); Tyler v. State, 91 Ga. App. 87 (1a) ( 84 S.E.2d 843). Therefore no reversible error is shown by the remaining enumerations of error.
Judgment affirmed. All the Justices concur.