Opinion
17820.
SUBMITTED APRIL 15, 1952.
DECIDED MAY 12, 1952.
Murder. Before Judge Andrews. Fulton Superior Court. January 18, 1952.
Harris, Henson Gower, for plaintiff in error.
Eugene Cook, Attorney-General, Charlie O. Murphy, Frank S. French, R. A. Garland, Paul Webb, Solicitor-General, Wm. E. Spence, and Rubye G. Jackson, contra.
1. The remarks made by an attorney for the prosecution in a preliminary statement to the jury were not such as to require the court to declare a mistrial.
2. The evidence relating to a separate and distinct crime, being a part of the res gestae, was admissible.
3. The motion to declare a mistrial, by reason of an answer of a witness for the State given upon cross-examination, was without merit.
4. The evidence was sufficient to authorize the verdict.
No. 17820. SUBMITTED APRIL 15, 1952 — DECIDED MAY 12, 1952.
John Henry Thornton was indicted for murder, and the jury returned a verdict of guilty without a recommendation.
An attorney for the prosecution in a statement to the jury preceding the introduction of evidence said: "This defendant with an abandoned and malignant heart took a pistol, after shooting the deceased in this indictment, went up the street and shot John L. Teamer out of his bed." Subsequently, during the trial, there was evidence that, after the accused shot the deceased he immediately went to the home of the deceased, which was just around the corner, and shot at the husband of the deceased three times while he was in bed, and returned to the house where the homicide occurred within five minutes and stated, "I have got both of them."
By the first ground of the amended motion, exception is taken to the denial of a motion for mistrial, made at the conclusion of the above-quoted remarks by the attorney; and the third ground is an exception to the admission of evidence as to the shooting at the husband.
1. As to the statement made by the attorney, it was proper to state to the jury in a general way the character of evidence that he expected to present to establish guilt. See Thomas v. State, 144 Ga. 298 (3) ( 87 S.E. 8). His statement that the shooting at the husband was done with an "abandoned and malignant heart" was not improper, in that, such act being part of the res gestae, the animus and mental attitude of the accused was a proper subject for the jury to determine, and not an improper deduction for an attorney to insist upon.
2. Though the evidence related to a separate and distinct crime, it was admissible as part of the res gestae to illustrate the state of mind of the accused. Floyd v. State, 143 Ga. 286 (2) ( 84 S.E. 971); Hill v. State, 161 Ga. 188 ( 129 S.E. 647).
3. The second ground of the amended motion asserts error in not declaring a mistrial. On the cross-examination of a witness for the State, the attorney for the accused propounded the following question: "Polly, Bud lived in the house with you, didn't he?" Answer: "When he was out of the chaingang." A motion for mistrial was made. The court immediately ruled out the evidence and told the jury to disregard that response. The refusal to declare a mistrial was not error. Worthy v. State, 184 Ga. 402 (1) ( 191 S.E. 457); Tye v. State, 198 Ga. 262 (4) ( 31 S.E.2d 471); Brown v. State, 203 Ga. 218 (7) ( 46 S.E.2d 160).
4. The evidence was sufficient to authorize the verdict.
Judgment affirmed. All the Justices concur.