Opinion
62187, 62188.
DECIDED JUNE 18, 1981.
Armed robbery. Coweta Superior Court. Before Judge Knight, Senior Judge.
Arthur B. Edge IV, for appellant (case no. 62187).
Guerry R. Thornton, for appellant (case no. 62188).
Arthur E. Mallory III, District Attorney, Gerald S. Stovall, Assistant District Attorney, for appellee.
The appellants were jointly tried and convicted of committing an armed robbery in Coweta County. They file separate appeals, but the error enumerated is identical in each case. Prior to trial, each appellant made a motion in limine to exclude evidence as to their participation in another robbery on the same day in Fulton County, for which they had already been tried and convicted. The trial court reserved ruling initially but granted the motion during trial. However, during the district attorney's examination of a police officer, the following transpired: "Q. Have you had to identify them [the appellants] in a court proceeding before today? A. Yes sir, in Fulton . . ." At that point the trial court sustained the appellants' objection, ruled out the question and answer, and admonished the district attorney out of the presence of the jury. However, he denied their motion for mistrial. They contend on appeal that the court erred in not granting the motion or instructing the jury to disregard the question and answer. Held:
"[T]he only evidence before the jury was that the appellant[s] . . . [were] . . . identified . . . while . . . involved in a trial, though not necessarily a criminal one. . . `[T]he mere presence of the defendant on trial in some other court without more' does not inject his character into evidence. Creamer v. State, 229 Ga. 704, 708 ( 194 S.E.2d 73) [1972]. The appellant's character not having been placed in issue by the witness' testimony, the motion for mistrial was properly overruled. There was no requirement that the judge instruct the jury to disregard. . ." Garrett v. State, 141 Ga. App. 584, 585 ( 234 S.E.2d 161) (1977).
Judgments affirmed. Deen, P. J., and Carley, J., concur.