Williams v. State , 135 Ga. App. 919 ( 1975 )

135 Ga. App. 919 (1975) 219 S.E.2d 632

WILLIAMS
v.
THE STATE.

51091.

Court of Appeals of Georgia.

Argued September 17, 1975. Decided September 30, 1975.

Tate & Kreeger, George H. Kreeger, for appellant.

Leroy Williams, pro se.

George W. Darden, District Attorney, B. Wayne Phillips, Assistant District Attorney, for appellee.

WEBB, Judge.

Leroy Williams was tried and convicted of theft by receiving stolen property (Criminal Code § 26-1806), and he appeals. Held:

1. Enumerations 1 and 2 complain that the court erred in admitting into evidence state's exhibits 1 and 2, which were lists of items stolen from the burglarized businesses. Assuming arguendo that it was error to admit the lists from which the witnesses testified (compare State Hwy. Dept. v. Godfrey, 118 Ga. App. 560 (1) (164 SE2d 340) with Davis v. State, 91 Ga. 167 (1) (17 S.E. 292)), the witnesses were nevertheless authorized to refresh their memories and swear from the lists (Shouse v. State, 231 Ga. 716, 718 (5a) (203 SE2d 537)); and having done so the admission of the lists themselves was cumulative to the oral testimony and harmless, obviating the necessity of reversal. Mabry v. Henley, 123 Ga. App. 561 (1c, 4) (181 SE2d 884); Dill v. State, 222 Ga. 793 (1) (152 SE2d 741).

2. Defendant complains that the state improperly placed his character in issue by the following testimony of John Norton, a wholesale dealer who had initially agreed to buy the property but who called the police instead: "Q. At that point Leroy didn't know that you had been talking with the police, did he? A. He had some indication. To be perfectly honest, I had known and had dealt with Leroy. I had not with any of the others." This testimony did not impermissibly put defendant's character in issue, and there was no error in overruling the motion for mistrial. James v. State, 223 Ga. 677 (11) (157 SE2d 471); Creamer v. State, 229 Ga. 704 (2) (194 SE2d 73).

3. In Enumeration 4, defendant complains that the court erred in permitting Ronnie Knighton, attorney for the co-indictee, to testify after the witness had remained in the courtroom during the trial after the rule of sequestration had been invoked. Attorney Knighton testified that in return for the co-indictee's guilty plea and testimony on behalf of the state, the district attorney would recommend a probated sentence. The sole purpose of this witness' testimony was to reveal the agreement testified to (see Allen v. State, 128 Ga. App. 361 (196 SE2d 660)), and the testimony was favorable to defendant since it might adversely affect the co-indictee's credibility as a state's witness. See Cauley v. State, 130 Ga. App. 278, 294-296 (203 SE2d 239); Cauley v. State, 134 Ga. App. 310 (214 SE2d 402); Echols v. State, 231 Ga. 633, 634 (1) (203 SE2d 165). One who seeks the reversal of a verdict and judgment must show harm as well as error. Dill v. State, 222 Ga. 793 (1), supra.

Judgment affirmed. Bell, C. J., and Marshall, J., concur.