Johnson v. State

182 S.E.2d 701, 123 Ga. App. 857, 1971 Ga. App. LEXIS 1410

• Court: Court of Appeals of Georgia
• Decided: May 5, 1971
• Docket: 46049
• Status: Published

Opinions

Jordan, Presiding Judge.

The defendant appeals a conviction and sentence for burglary. Held:

1. The use of the word "fired” by the prosecutor in his opening statement affords no basis for the grant of a mistrial on the ground that the prosecutor deliberately put the accused’s character in evidence. In the colloquial sense as here used it merely discloses that the victim, and not the accused, had terminated the accused’s employment a short time before the alleged offense was committed. The mere statement that a person has been fired "is not defamatory as a matter of law. The right to hire implies the right to fire, and therefore a statement that the latter right has been exercised by one’s employer does not necessarily have a tendency to injure or discredit the employee who has been discharged.” Fairbanks Publishing Company v. Pitka (Alaska) 376 P. 2d 190, 195.

2. The remarks of the prosecutor to which counsel for the defense objected "because there is no scintilla of evidence that this defendant knew where the keys were” are not reported in the transcript. In our opinion the transcript is insufficient in this respect to support the contention. See Travis v. State, 122 Ga. App. 800 (178 SE2d 741).

3. The contention that the court erred in failing to instruct the jury to disregard the testimony of Cleveland Hall is without merit. Neither the enumeration nor the brief includes any citations to the transcript to support the statement that this witness "had been impeached by false statements he repeatedly and knowingly made.” The testimony of this witness placing the accused at the scene of the alleged crime was in effect admitted by the accused, who stated to the jury that "when he said he seen me, he probably did see me” and then proceeded to explain his presence by stating, "I was passing there through it. But, so far as no stopping or starting, I just kept on passing.”

4. The above leaves for consideration the sole issue of whether the evidence supports the conviction. It is uncontradicted that someone burglarized the premises between the time of closing about 1:15 p.m. and the discovery of the crime about 6 p.m. Cleveland Hall left his work in the vicinity about 5 p.m., and as he was leaving he observed the defendant and an unidentified person in the rear of the premises near a door which, as shown by other testimony, had been unlocked from the inside. These two men were engaged in loading something on a truck. Specifically referring to the accused, Hall testified, "Well, when I saw him he was handing something up on the truck.” In our opinion the evidence authorizes the conviction of the accused as a participant in the burglary.

Argued March 3, 1971 Decided May 5, 1971 Rehearing denied June 4, 1971 — Cert, applied for. Louis H. Mitchell, for appellant. Eugene Hardwick Polleys, Jr., District Attorney, for appellee.

Judgment affirmed.

Bell, C. J., Hall, P. J., Eberhardt, Pannell, Deen and Quillian, JJ., concur. Whitman and Evans, JJ., dissent.