Barreto v. State , 123 Ga. App. 117 ( 1970 )

Pannell, Judge.

A witness for the defendant charged with burglary while being cross examined by the prosecuting attorney testified that he was a good friend of the defendant and after so testifying was asked the following question: "Did you once take a warrant out charging him with the offense of . . . "at which point (Tr. p. 105), before the nature of the offense was given, an objection was made on the grounds that it had no bearing on the case. The court sustained the objection. At the conclusion of this witness’s testimony and that of another witness, and after the defendant had made his statement and after the defense rested and while the prosecution was considering the question of whether they would put up any evidence in rebuttal, counsel for the defendant (Tr. p. 123) made a motion to declare a mistrial because of the previous question objected to on the grounds that it put the defendant’s character in evidence when the defendant had not done so. The motion was overruled without any instructions to the jury and upon his conviction the defendant appealed, enumerating as error the overruling of his motion for new trial. Held:

Submitted October 5, 1970 Decided December 1, 1970 Rehearing denied December 16, 1970 — Cert, applied for. Andrew A. Smith, for appellant. Lewis R. Slaton, District Attorney, Stephen A. Land, Tony H. Hight, for appellee.

Pretermitting the question of whether the asking of the question was a proper one for testing the credibility of the witness (see Kimbrough v. State, 9 Ga. App. 301 (70 SE 1127)), the motion for mistrial was not timely and will be considered as having been waived because of delay in making the motion. See in this connection Hospital Authority of the City of St. Marys v. Eason, 113 Ga. App. 401, 412 (148 SE2d 499), reversed on other grounds in 222 Ga. 536 (150 SE2d 812); Cato v. State, 183 Ga. 277 (1) (188 SE 337); Pulliam v. State, 196 Ga. 782 (6, 7) (28 SE2d 139).

Judgment affirmed.

Eberhardt, J., concurs. Jordan, P. J., concurs specially.