Scudiere v. State , 130 Ga. App. 477 ( 1973 )

Evans, Judge,

concurring specially. I concur in the judgment affirming the trial court, but not in all that is set forth in the majority opinion.

Specifically, as to enumeration of error number 7, if this were a close case, I would feel that the error there complained of warrants a reversal and the grant of a new trial.

H. V. Kronise, Jr., a captain in the Augusta Police Department, was sworn as a witness by state’s counsel, and on cross examination the following question and answer appear in the record: "Q. You went there to try to make somebody commit a crime, didn’t you?” "A. No, sir. I did not give him — I did not induce him to commit any crime that he wouldn’t have committed before I came there.” Defendant’s counsel objected because the answer attempted to inject defendant’s character into evidence, and moved for a mistrial, which motion was overruled.

The majority opinion holds the answer to be responsive, with which holding I am in violent disagreement. It appears to have been a calculated and deliberate effort by the police captain to prejudice the rights of defendant, by testifying in a general and unsubstantiated fashion that defendant would have committed any crime that the policeman sought to induce him to commit, even if the inducement were absent. It was anything but responsive to the question. The policeman was not asked what crimes defendant would have committed absent the police captain’s inducement, and yet that is what he answered. He did not answer the question that was propounded, to wit: "You went there to try to make somebody commit a crime, didn’t you?” The police captain had to realize that his own conduct was under investigation at this point, and not the conduct of the defendant. And yet witness switched his answer and responded to something that was not asked; and sought to smear the defendant by saying that defendant would have committed any such crime with or without inducement. The policeman thus sought to divert attention from his own conduct — which was the proper subject of investigation under cross examination — and changed the subject and talked of another matter, to wit, the defendant’s conduct. In my opinion, this was prejudicial conduct by the witness, deliberately committed, and the learned trial judge should have rebuked the witness in stern fashion. I repeat, that if this were a close case (but it is not close) I would vote to reverse and grant a new trial.