Mikle v. State , 236 Ga. 748 ( 1976 )

Nichols, Chief Justice.

The appellant was indicted for murder and upon conviction was sentenced to life imprisonment to follow a seven-year sentence for motor vehicle theft.

The appellant enumerates only one error. He testified in his own behalf at the trial and while cross examining the appellant, the district attorney asked about a previously introduced Federal Firearms Registration form filled out at the time the gun used to commit the crime charged was purchased. One of the questions on the form was: "Have you been convicted in any court for a crime punishable by imprisonment for a term exceeding one year?” The appellant answered "No.” The district attorney read the question to the appellant and he affirmed the answer given on the form. Over objection the trial court then allowed the introduction of several previous convictions for the purpose of impeachment.

Submitted January 29, 1976 Decided April 20, 1976 Rehearing denied May 4, 1976. Robert J. Evans, for appellant. F. Larry Salmon, District Attorney, Arthur K. Bolton, Attorney General, Harrison Kohler, Staff Assistant Attorney General, for appellee.

The state chose to put the defendant’s character in issue by use of the form to ask a question which would otherwise be prohibited and having nothing to do with any direct testimony of the defendant. After getting in the prohibited question and knowing what the answer would be, he sought to impeach the answer by introducing his prior criminal record.

In Brown v. State, 118 Ga. App. 617, 618 (165 SE2d 185) (1968), it was held: "It is axiomatic that the general character of a defendant on trial for the commission of a crime and his character in other transactions is irrelevant unless the defendant himself chooses to put his character in issue. Code §§ 38-201, 38-202; Bacon v. State, 209 Ga. 261, 262 (71 SE2d 615) [1952].”

Here, the state chose to put the defendant’s character in issue and then to introduce in evidence his entire past criminal record to impeach him. This was error requiring the grant of a new trial.

Judgment reversed.

All the Justices concur, except Hill, J., who dissents.