Williford v. State

235 S.E.2d 625, 142 Ga. App. 162, 1977 Ga. App. LEXIS 1523

• Court: Court of Appeals of Georgia
• Decided: April 29, 1977
• Docket: 53776
• Status: Published

Opinion

Quillian, Presiding Judge.

The defendant appeals his voluntary manslaughter conviction. Held:

1. During the course of the prosecuting attorney’s argument to the jury he stated with reference to the victim "he was a married man. His wife just had a baby, but he’s not here to see that.” Counsel for the defendant interposed an objection and moved for a mistrial on the grounds that there had been no evidence to that effect. The trial judge then addressed the assistant district attorney: "Well, you owe him an apology, and I won’t grant a mistrial, but if that’s not in the evidence, don’t go outside the record and argue anything that’s not in the record. [By the Assistant District Attorney] All right, I apologize. [By the court] And withdraw the statement. . . [By the Assistant District Attorney] I withdraw that statement. [By the court] If it was not within the evidence, then you’re not permitted to discuss anything that is not within the evidence. Disregard the statement, ladies and gentlemen. It was an improper remark by the Assistant District Attorney.”

Sufficient curative action was taken by the trial judge and it was not error to refuse to grant a mistrial. Campbell v. State, 81 Ga. App. 834, 839 (2) (60 SE2d 169); Benefield v. State, 140 Ga. App. 727, 730 (3) (232 SE2d 89); Wheeless v. State, 92 Ga. 19 (1) (18 SE 303); Hulsey v. State, 172 Ga. 797, 798 (5) (159 SE 270).

2. An excerpt from the charge with regard to incriminatory admissions was not error for the reasons assigned.

Judgment affirmed.

Shulmán and Banke, JJ., concur. Charles Z. Donaldson, for appellant. H. R. Thompson, District Attorney, Charles W. Cook, Assistant District Attorney, for appellee.