McKinney v. State

103 S.E. 470, 25 Ga. App. 404, 1920 Ga. App. LEXIS 840

Opinion

Broyles, P. J.

The defendant was being tried for shooting his wife with intent to murder her. The solicitor-general put up the wife, who testified that the shooting was an accident. Before introducing the witness, however, the solicitor-general, in a colloquy with the defendant’s counsel, in the presence and hearing of the jury, stated: “Pm not going to depend upon the testimony of the wife; she’s not going to swear the truth about it.” Counsel for the defendant objected to this statement, whereupon the court, addressing defendant’s counsel, said: “Well, the jury will not be influenced by any-remarks between the solicitor and counsel and the court on questions of evidence.” Subsequently, after argument of counsel and after the court had charged the jury and while the jury were considering the ease, counsel for the defendant moved for a mistrial because of the solicitor-general’s remark. This motion was overruled. The jury returned a verdict finding the defendant guilty of shooting at another.

Under the circumstances stated, the court should either have declared a mistrial of the case, or have recalled the jury and expressly instructed them not to consider the improper' remarks of the solicitor-general, and the failure so to do necessitates another trial of the case.

Judgment reversed.

Luke and Bloodworth, JJ., concur.