Johnson v. State , 144 Ga. App. 406 ( 1977 )

Bell, Chief Judge.

Defendant was convicted of robbery by intimidation. Held:

1. The assistant district attorney during his cross examination of one of defendant’s witnesses was permitted over objection to show that this witness was then confined in the local county jail. The trial court permitted the testimony on the basis that the witness at the onset of the cross examination testified that she was "living” at a particular Augusta address and therefore the fact that she was confined in the county jail would disprove her testimony that she was living elsewhere. See Code § 38-1802. This was error. From a reading of the cross examination, it is obvious that the assistant district attorney was attempting to impeach or destroy the credibility of this witness by showing that she was then incarcerated in jail. A witness may be impeached by showing conviction of a crime involving moral turpitude. Beach v. State, 138 Ga. 265 (75 SE 139). The fact of conviction must be shown by record evidence and not by testimony. Howard v. State, 144 Ga. 169 (86 SE 540). It is therefore improper to attempt to discredit a witness by showing that the witness is confined in jail as one may he in jail accused of a crime and may be in fact not guilty. Our law is that conviction impeaches; accusation does not. Bryant v. State, 191 Ga. 686, 687 (13 SE2d 820). The prosecuting attorney asked the witness: "You’re in the county jail down at Fourth Street.” A. "Uh huh.” Q. "Aren’t you? I mean, that’s what that ID bracelet is for?” A. "Yeah.” Q. "So you can’t come in and go out?” A. "Right.” Q. "So they can tell who you are down there. What are you down there for?” At this point defendant’s counsel made what at the time was only a general and insufficient objection that the questioning was "irrelevant.” The court then asked defendant’s counsel "Why” it was irrelevant and counsel responded with an incorrect principle of law that "She’s been convicted of a misdemeanor and a conviction for a misdemeanor is not grounds for impeachment.” The prosecuting attorney then stated "She [witness] said she was living on Holley Street and she’s living at . . .” The court: "Didn’t she testify that she was living at Holley Street and that’s where she was staying?” Witness: "I’m living at Holley Street . . .” The court: "Well, wasn’t he entitled to show that she is not staying there? ... That’s what I understood he — was attempting to do.” To the court’s comment defense counsel responded "I understand differently, Your Honor.” There followed colloquy in which the court discussed moral turpitude and concluded that "a misdemeanor can involve moral turpitude.” Thus, viewing the colloquies and the evidence in their totality it is obvious that the trial judge was placed on notice that defendant’s counsel, however ineptly expressed, was in fact objecting to an improper attempt by the prosecuting attorney to impeach this witness. The judge erred in failing to sustain this objection, in allowing the prosecuting attorney to proceed in this vein, and in permitting the jury to consider the improper testimony. The error was harmful and requires reversal.

Submitted September 19, 1977 Decided December 5, 1977 Rehearing denied December 20, 1977 Surrett, Thompson, Bell, Choate & Walker, John C. Bell, Jr., for appellant. Richard E. Allen, District Attorney, John L. Mixon, III, Assistant District Attorney, for appellee.

2. All other enumerations have no merit and do not require further consideration.

Judgment reversed.

Webb, Smith, Shulman and Birdsong, JJ., concur. Deen, P. J., McMurray and Banke, JJ., dissent. Quillian, P. J., not participating.