Sloan v. State , 183 Ga. 108 ( 1936 )

Hutcheson, Justice.

J. H. Sloan was convicted of murder. A motion for new trial was overruled, and he excepted. The special grounds of the motion for new trial sufficiently appear in divisions 1 and 2 of this opinion.

In his argument to the jury the solicitor-general in referring to the defendant said, "In case you find him guilty of murder and recommend mercy, the penalty is he shall spend the remainder of 'his life in the penitentiary, unless he is pardoned.” Counsel for the 'defendant moved to declare a mistrial; whereupon the court said, “Gentlemen of the jury, I will state to you that the remarks of the solicitor were improper, and I will ask you [addressing the solicitor] not to do that any further. His punishment will be fixed as the law prescribes, and you will not consider the statement of the solicitor-general with reference to which objection has been made, and I ask you to eliminate that from your mind. It has no place in your consideration.” Under the circumstances the court did not err in refusing to declare a mistrial. Lucas v. State, 146 Ga. 315 (7) (91 S. E. 72); White v. State, 177 Ga. 115, 125 (169 S. E. 499); McRae v. State, 181 Ga. 68 (181 S. E. 571).

The solicitor-general made the following statement in his argument to the jury: “I believe that the sheriff, sheriff Beard, swore the truth.” Hpon objection by counsel for the defendant that this was improper argument, and request that the court instruct the jury that it was improper and that whether witness swore the truth was "up to them,” the court addressed the jury as follows: "It is all right for the solicitor-general to argue evidence, but as to what he thinks is not proper; that is a question for you. He might argue that he believes the — what conclusion you should reach; but as to effect is up to you, and not the solicitor-general.” No motion for mistrial was made. We think the instruction of the court to the jury, while not as definite as it could have been, was a sufficient compliance with the request of counsel for the defendant. If counsel were not satisfied that the remarks of the court eradicated the prejudical effect, if any, of the remarks of the solicitor-general, they should have made a motion to declare mistrial. Patton v. State, 117 Ga. 230 (10) (43 S. E. 533); Ogletree v. State, 40 Ga. App. 733, 735 (151 S. E. 396), and cit.

The evidence was sufficient to authorize the verdict, and the judge did not err in overruling the motion for new trial.

Judgment affirmed.

All the Justices concur, except Bussell, G. J., who dissents.