Carroll v. State , 143 Ga. App. 796 ( 1977 )

Smith, Judge.

The appellants were convicted of burglary after a jury trial. Their appeal contends the trial court erred in allowing the state to use argumentative questions on cross examination of one appellant and in allowing the state to introduce evidence of a prior burglary conviction. With the latter contention we agree, and the judgment is reversed.

1. On cross examination of one appellant, the state inquired, with reference to one of the appellant’s explanations of what had transpired, whether it was just "chance or coincidence” that events had happened that way. The trial court allowed this question over objection that it was argumentative. The question logically followed the explanation that had been given and we can see no prejudice it might have caused. It was no abuse of discretion for the trial court to allow it. Ward v. State, 138 Ga. App. 454 (226 SE2d 278).

2. The appellants’ remaining enumerations of error concern statements about prior criminal conduct. The appellants presented as a witness a deputy sheriff who testified on direct examination that he knew the defendants from when they were "serving time in Whitfield County Jail where I work.” Later, when one of the appellants testified, the state was allowed, over objection, to ask on cross examination why they had been in jail. The answer was, "burglary.” The state contends both that the appellants’ presence in jail thereby was introduced as an issue in the case and that the appellants’ character became an issue. On either issue, it argues, evidence of the prior burglary was admissible. We disagree.

(a) Although the appellants’ presence in jail was interjected into the case by the appellants themselves, the state did not acquire free rein to expand on it. The prejudicial effect of evidence concerning independent crimes is the paramount consideration behind the general rule of inadmissibility of such evidence. When the evidence is independently relevant to an issue in the case, such as to show malice, motive, intent, or identity, it may be admissible. Strickland v. State, 137 Ga. App. 419, 421 (224 SE2d 87). Even then, the evidence will not be admissible unless its relevance to the issue outweighs its prejudicial impact. Payne v. State, 233 Ga. 294, 312 (210 SE2d 775). If the evidence tends to show a general criminal propensity more than it tends to prove an issue in the case, it should not be introduced to the jury. Hanson v. State, 143 Ga. App. 200.

In this case, the balance of considerations renders inadmissible the explanation of why the appellants were in jail. The jury in a burglary trial undoubtedly is influenced by testimony that the defendants were recently in jail for a prior burglary. What was the "issue” proved at the expense of admitting this prejudicial evidence? It was not a central issue, or element of the crime, such as motive or identity. Instead, the evidence corroborated and explained the defense’s admission that the appellants were previously jailed and came thereby to know a deputy sheriff. This fact was only remotely and peripherally relevant to this case, and it did not require elucidation at the cost of prejudicing the jury.

Submitted May 2, 1977 Decided November 9, 1977. Michael S. Moldavan, for appellants. Charles A. Pannell, Jr., District Attorney, Dean B. Donehoo, for appellee.

(b) Nor can we agree that this evidence was admissible because the appellants had placed their character in issue. In the cases cited by the state, Knighton v. State, 40 Ga. App. 489 (150 SE 432); Rhodes v. State, 33 Ga. App. 827 (128 SE 217), and in dozens of other Georgia cases, a criminal defendant placed his character in issue by testifying as to his good character. The state then could rebut with evidence of bad character. Here, the appellants’ evidence tended to show, if anything, had character. Their "good character” was not in issue so as to authorize rebuttal. We know of no Georgia case which has allowed the state to augment a defendant’s admission of bad character, or which has held that such an admission places the defendant’s character in issue.

This evidence should have been excluded, and the appellants must now be afforded a new trial.

Judgment reversed.

Bell, C. J., Webb, Shulman and Birdsong, JJ., concur. Banke, J., concurs in the judgment only. Been, P. J., and McMurray, J., dissent. Quillian, P. J., not participating.