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Shooting at another. Fulton Superior Court. Before Judge Alverson.
1. In a prosecution for shooting at another a volunteered statement by the arresting officer, in response to a question as to what had happened on the occasion, that he heard the defendant remark that she had stolen money, should have been excluded unless it could show or tend to show a motive for the shooting, in which event admission of the remark should be restricted by the court as admitted for that purpose only.
2. Where a motion for mistrial was made after the witness volunteered that he had heard the defendant remark that she had stolen money and the court overruled the motion without having restricted the purpose for which the evidence was allowed, and without taking any corrective measure of any kind, harmful error requiring the grant of a new trial appears.
Martha Willingham, appellant here, was tried under indictment for assault with intent to murder and found guilty of shooting at another. In her unsworn statement to the jury appellant related that she went to the home of Gail Williams looking for William Lee, to whom she had entrusted money for a business venture; that Lee had put Miss Williams in the house, using for that purpose the money which appellant furnished to him from funds saved from her earnings and allotment from her army husband; that Lee was spending time with Miss Williams at the house and appellant had requested that her money be returned; that upon finding Lee at Miss Williams' house she demanded her money and an altercation ensued; that Lee saw the gun in appellant's hand and the two of them began tussling, when the gun went off injuring Miss Williams; that after appellant and Lee took Miss Williams to the hospital appellant demanded that Lee return her money and remove his clothes and effects from appellant's house since her husband was coming home; that appellant called a policeman to assist in evicting Lee and in obtaining the pistol from him, of which he had gained possession.
In rebuttal the State called the police officer who answered the disturbance call. He was asked to relate what happened when he recovered the pistol from Lee, and he testified that when he arrived appellant and Lee were "in a kind of upset feud" and were "fussing and carrying on"; that during the process of recovering the pistol and of Lee's removal from appellant's premises "they were still arguing and I did hear the defendant state that she had stolen, she had done everything to keep him up, that he never had worked, wouldn't work and that the bitch should have been shot."
A motion for mistrial was made by appellant on the grounds that by the volunteered remark as to appellant having stolen, the State had illegally placed her character in issue when she had not done so. The State contended that this testimony was in rebuttal of appellant's statement as to the source of the money furnished to Lee, and the trial court, while apparently of the view that the officer would not have the right to testify as to matters involving her character even if appellant had opened up for inquiry the source of the money, overruled the motion for mistrial and failed to rule the remark out or to take any corrective action whatever.
On the overruling of the motion for mistrial and on the court's failure to inform the jury to disregard remarks about appellant's character and to inform them that the testimony was being allowed for some purpose other than character evidence, appellant enumerates error.
1. The State contends that appellant in effect admitted in her statement that she was guilty of larceny after trust in regard to the money she had saved from the allotment from her husband who was in the Army, and that the officer's testimony as to her having stated that she had stolen was no worse than this admission. The argument is that the Army has two kinds of allotments; that the first kind is the required allotment for dependents; that the second kind is optional, a means of saving money during service in the armed forces; that the latter kind has an economic value to the nation in reducing the amount of money which has to be sent overseas and in giving the soldier a cushion of savings to help him get started in civilian life when he returns from service; and that when the soldier makes an allotment of the second kind the money is sent by the government monthly to the named relative, and the soldier expects that money to be saved for him to use upon his return.
Whatever may be the practice as to Army allotments, and whatever a hypothetical soldier may expect, appellant's statement does not establish that she was receiving money under both types of allotments or that she was to hold any money in trust for her husband. She stated only: "It was money I had saved from my husband who was in the army, from my allotment, and for where I work on the side . . . My husband was coming home and I didn't want my husband to know I just up and give away this kind of money because he didn't have anything . . ."
We conclude that the unrestricted admission as to appellant having stolen was harmful, in that it did place her character in issue when she had not done so.
2. "It is a fundamental principle in our system of jurisprudence, intended to protect the individual who is charged with crime, and to insure him of a fair and impartial trial before an unbiased jury, that the general character of the defendant and his conduct in other transactions is irrelevant unless the defendant chooses to put his character in issue. [Citations omitted]. It is universally recognized . . . that 'The general rule is, that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.' [Citations omitted]." Bacon v. State, 209 Ga. 261, 262 (71 SE2d 615). "Where a witness for the State in a criminal case voluntarily injects into the trial improper and prejudicial matter, on motion for a mistrial based thereon, whether mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing testimony from the consideration of the jury under proper instructions, is a matter ordinarily in the discretion of the trial court." Felton v. State, 93 Ga. App. 48 (1) (90 SE2d 607). In that case it was pointed out that in some cases the injection of the character issue may be so improper and prejudicial as to require the grant of a mistrial, notwithstanding the fact that the trial court undertakes to take corrective measures or to exclude the testimony in response to the motion for mistrial, as where the prosecuting witness volunteered that "about 10:30 that night, he was shot trying to break into another house." Likewise, where the State's witness volunteered on cross examination that defendant had been on the chain gang and had been paroled. Hooks v. State, 101 Ga. App. 351 (114 SE2d 48).
State, 82 Ga. App. 518 (1) (61 SE2d 556); Hayes v. State, 80 Ga. App. 99 (2) (55 SE2d 646); Harrison v. State, 60 Ga. App. 610 (4) (4 SE2d 602); Stanford v. State, 201 Ga. 173 (2) (38 SE2d 823).
In the case at bar the general question of "what happened" asked by the State of its police-officer witness gave appellant's counsel no opportunity to object to the question on the ground that appellant's character would be put in issue, and the volunteered response of the officer that he heard appellant state that she had stolen gave appellant's counsel no election but to move for a mistrial. Under these circumstances and under the above authorities it was the duty of the trial court to exercise its discretion in either granting the motion or taking corrective measures of a lesser nature. Even if we assume, as contended in the State's brief, that the response was admissible to show motive or to rebut appellant's statement as to the source of the money furnished to Lee, or admissible for some other reason, the trial court should nevertheless have severely limited the scope of the evidence admitted for this purpose and specifically instructed the jury as to the limited purposes for which it was admitted. Cf. Leverette v. State, 107 Ga. App. 712, 715 (131 SE2d 782). While the State asserts that such a procedure would have emphasized the harmful testimony and thereupon appellant would contend that it was prejudicial error to so emphasize it when he had not requested the instruction, under the authorities cited herein the motion for mistrial presents the question as to whether appellant should be granted a mistrial or any lesser relief; and, if there was a granting of some lesser relief, the complaint in the appellate court must be limited to the proposition that the trial court abused its discretion in not granting greater relief.
The trial court having taken no action whatsoever, however, it was error to deny the motion for mistrial. As stated in Hooks v. State, 101 Ga. App. 351 (114 SE2d 48) "peace officers who are witnesses for the State, and who have special training in the field of criminal procedure, have every opportunity to know the basic rules of criminal evidence, including the one that the jury is not to be prejudiced by the injection of the defendant's character in issue when he has not placed it in issue, and that 'voluntary' remarks by such witnesses with a view to placing before the jury that which, if done by a question or remark on the part of the solicitor, would be error, 1 will not be condoned. While motions for mistrial are addressed largely to the discretion of the trial judge, and he may obviate the necessity for mistrial by proper instructions, the court here said merely, 'I will exclude it,' and gave the jury no instructions whatever. Under the record of this case, it was error to deny the motion for a mistrial, no other corrective measures having been taken."
Judgment reversed. Felton, C. J., and Whitman, J., concur.
1  See Code 81-1009, and compare Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159, 168 (10) (91 SE2d 135); Atlantic C. L. R. Co. v. McDonald, 103 Ga. App. 328 (3) (119 SE2d 356); and Georgia Power Co. v. Puckett, 181 Ga. 386, 393 (3-5) (182 SE 384) with City of Macon v. Smith, 117 Ga. App. 363 (4) (160 SE2d 622).
Lewis R. Slaton, Solicitor General, J. Walter LeCraw, Jack Mallard, for appellee.
John McGuigan, for appellant.
Friday May 22 18:58 EDT

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