Gore v. State , 124 Ga. App. 398 ( 1971 )

Jordan, Presiding Judge.

The defendant appeals a conviction of the misdemeanor offense of shoplifting.

Long after the time for filing an enumeration of errors the defendant submitted a purported amendment to his original enumeration of errors. This amendment will not be considered. Foskey v. Kirkland, 221 Ga. 773 (1) (147 SE2d 310); Arkwright v. State, 223 Ga. 768 (158 SE2d 370); Ga. R. & Bkg. Co. v. Frazer, 118 Ga. App. 810 (165 SE2d 607).

The defendant originally asserted error solely on the overruling of his "objection to questions and remarks made by the district attorney which were prejudicial in nature.”

The enumeration is explained in the defendant’s first brief as follows: "During the examination of the defendant before the jury, the district attorney very abruptly asked the defendant how many times.the defendant had taken the Georgia bar examination. Before an objection could be made, the district attorney asked whether or not it was true that defendant was suing the bar examiners in an effort to force them to pass him. The defendant objected and was overruled.”

The transcript discloses that the trial judge sustained an objection "as to how many times he has taken the bar examination.” Thereafter, immediately following the defendant’s testimony that he knew he was not guilty of the alleged shoplifting offense, in the face of eyewitness testimony to the contrary, the district attorney posed the question, "That is the same reason, Mr. Gore, that you sued the state bar examiners, isn’t that right?” and his answer "I don’t know. . .” was interrupted by his counsel’s motion for mistrial.

The jury was immediately excused, and after a hearing the trial judge overruled the motion for mistrial, informed the attorneys that he would instruct the jury to disregard the statement, and require an apology from the district attorney in the presence of the jury. In the presence of the jury he instructed the jury to "disregard completely the statement made by the district attorney. It was in the form of a question really . . . that’s why you sued the bar examiners. I want you to eliminate it from your mind.” He then informed the district attorney that "You owe an apology to the court and jury for this statement. You may so apologize.” The district attorney complied with his instructions, after which opposing counsel stated that "we just perfect the record by saying that we would feel that the admonishment would not serve the purpose of a mistrial.”

Argued June 29, 1971 Decided September 8, 1971. Oscar N. Gore, pro se. Jerry Gentry, for appellee.

In our opinion the transcript discloses an appropriate and adequate handling of the matter in the manner prescribed by Code §81-1009. There is no merit in the appeal.

Judgment affirmed.

Quillian, J., concurs. Evans, J., concurs specially.