Opinion
43837.
SUBMITTED SEPTEMBER 9, 1968.
DECIDED OCTOBER 8, 1968.
Burglary. Floyd Superior Court. Before Judge Scoggin.
Harl C. Duffey, Jr., for appellant.
Robert G. Walther, Solicitor General, for appellee.
1. When the only evidence involving the defendant in other criminal transactions was that he had acted as a paid informant for law enforcement officers in cases of vice and prostitution, it was exceedingly prejudicial to his case for the solicitor to argue to the jury that he had been "pushing women," meaning he had himself engaged in these activities. Counsel for the defendant having insisted that the error could be cured only by the grant of a mistrial and the court having failed to grant the motion or to reprimand the solicitor, the mere instruction to the jury to disregard the remarks was insufficient and requires reversal.
2, 3. The confession was properly introduced in evidence and, there being detailed corroboration from witnesses as to the manner in which the crime was committed, is sufficient to support a guilty verdict.
4. An allegation in the indictment describing the place burglarized as the "Green Meadows Dairy building" is sufficient although the owner was in fact Green Meadow Dairy Farms, Inc., where it was established by testimony that the plant was known equally by both appellations.
SUBMITTED SEPTEMBER 9, 1968 — DECIDED OCTOBER 8, 1968.
On February 3, 1966, the office of Green Meadow Dairy Farms, Inc., was burglarized and cash and checks were stolen. In March, 1967, the defendant Smith called Randolph Michael, an investigator with the Georgia Bureau of Investigation whom he had known for 14 years asking whether "if three people had committed a crime and one person confessed to the crime, involving the other two people, would it be sufficient to convict the other two people." On being told that this would be true if there were other corroborative evidence, he came to Michael's home and, while in the process of consuming a half pint of vodka which he had brought with him, signed a plenary confession to the burglary involving two other men, Chandler and Peavy, who he stated were living with him at that time. Michael repeatedly questioned Smith as to why he was making the confession and received the impression that Smith was relieving himself from pressure, presumably from Chandler and Peavy, by so doing. Michael had had no hand in the investigation of the dairy building burglary but had used Smith as an informant on other occasions, paying him with State funds for information. Upon the trial the defendant objected to the introduction of the confession in evidence, moved for mistrial because of certain argument by the solicitor, and moved for a directed verdict of acquittal. He appeals from the conviction on these grounds.
1. "Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff's attorney is the offender." Code § 81-1009. "In the trial of a criminal case, counsel for the State should refrain from making any argument that might be calculated to unfairly influence the jury in arriving at its verdict." Bland v. State, 210 Ga. 100, 107 ( 78 S.E.2d 51). "It is error to allow, over objection of the defendant, prejudicial and irrelevant matter to go before the jury in a trial, which tends to place his character and conduct before the jury, where the nature of the case does not involve such character." Fitzgerald v. State, 184 Ga. 19 ( 190 S.E. 602) and see Harris v. State, 183 Ga. 106 ( 187 S.E. 669); Josey v. State, 89 Ga. App. 215 ( 79 S.E.2d 64). Nor will a mere apology and withdrawal of the remark by counsel, where there is no reprimand by the court, be sufficient to prevent a mistrial if it appears that the remarks were such as to prejudice a fair trial. Southern R. Co. v. Black, 57 Ga. App. 592 (5) ( 196 S.E. 291). In this case the defendant testified that he had been paid by the GBI for information in cases involving prostitution, vice, lottery and all types of clip joint investigation. The solicitor, using this springboard, argued to the jury: "What kind of man is this defendant, willing to say and do whatever is necessary to avoid serving time, `pushing women' and so forth?" by which he was understood to mean pimping for prostitutes. In moving for the mistrial counsel for the defendant made it clear that he considered these remarks could not be cured by the court by merely instructing the jury to disregard them, and Barnes v. State, 111 Ga. App. 348 (1) ( 141 S.E.2d 785) is not applicable. No rebuke was made to counsel, as required by Code § 81-1009. "When the court after objection fails to rebuke counsel and endeavor by needful instructions to remove the prejudicial effect of the remarks from the minds of the jury or to order a mistrial, a new trial is required." Brown v. State, 110 Ga. App. 401, 407 ( 138 S.E.2d 741). The evidence in no way suggested that this defendant had engaged in abetting prostitution or other crimes but only that he had informed on others who did so, and the direct accusation of the solicitor, inferring that the defendant informed on his companions in order to buy his way out of his own criminal activities, was highly prejudicial and unsupported by evidence in this case. Its prejudice stems from the fact that it may well have been true, and it was certainly designed to influence the jury toward this conclusion when coming from the mouth of one who might be expected to know whether or not it was true. The court failed to apply the minimum required corrective action by both instructing the jury to disregard the remark and rebuking counsel. Ingram v. State, 97 Ga. App. 468, 486 ( 103 S.E.2d 666). The defendant, having insisted on the grant of a mistrial as the minimum corrective ruling, did not waive his right to assign error thereon. The corrective action was insufficient and demands a new trial.
2. The defendant's confession was properly introduced in evidence. It is undisputed that he initiated the interview with the purpose of giving the confession, that he was properly warned, and that no inducements or threats were held out to him. If he was motivated by either fear of or a desire for revenge on his alleged co-conspirators, such motivation was personal to him and did not concern the law enforcement officers. Sims v. State, 45 Ga. App. 657 (3) ( 165 S.E. 892).
3. There is solid testimony that the building in question was burglarized by a forcible entry through a rear window, the safe torn open, and a money box with cash and checks removed. The safe and building had been locked when the employees left in the evening and were found ransacked the next morning. A new scotch tape holder was found on the floor, badly scarred. The defendant's confession corroborated these and other details; he stated that he remained in the automobile and the other men returned with a small tin box containing cash bills and two green plastic bags; that they had knocked off the safe door with a wedge and chisel, and that they told him they had not brought enough wedges but used a scotch tape holder as an extra wedge. The defendant's contention upon the trial was that he did not participate in the burglary but knew the details from hearing conversation between the actual perpetrators, Chandler and Peavy, and that the false confession was a result of pressure, not emanating from the law enforcement officers. This defense addressed itself solely to the jury. "Proof of the corpus delicti and plenary confession are sufficient to sustain a conviction." Turnipseed v. State, 68 Ga. App. 824, 825 ( 24 S.E.2d 212); Davis v. State, 105 Ga. 808 (3) ( 32 S.E. 158).
4. It is also contended that there was a fatal variance between the allegata and probata in that the indictment charged burglary of the "Green Meadow Dairy building" whereas the building was in fact owned by Green Meadow Dairy Farms, Inc. In reply to a question: "There is no such name as Green Meadow Dairy; it is Green Meadow Dairy, Inc., — Green Meadow Dairy Farms, Inc.?" the witness replied: "All the signs show Green Meadow Dairy . . . Green Meadow Farms and Green Meadow Dairy is one and the same . . . Green Meadow Dairies was the plant." The rule that ownership must be proved as alleged, even though alleged with unnecessary particularity, is for the benefit of the defendant and a safeguard against possible double jeopardy; nevertheless, where the variance is slight and there is testimony that the place is known as well by one name as by its variant, it is not usually fatal. Sellars v. State, 113 Ga. App. 510 (4) ( 149 S.E.2d 158) and cit.; Rogers v. State, 90 Ga. 463 ( 16 S.E. 205).
For the reason stated in the first division of this opinion the trial court erred in refusing to grant a new trial.
Judgment reversed. Jordan, P. J., and Pannell, J., concur.