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Lawskills.com Georgia Caselaw
WHITE v. THE STATE.
62060.
SHULMAN, Presiding Judge.
Robbery. Ware Superior Court. Before Judge Hodges.
"The failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure." Code Ann. 38-415. "Where counsel in the hearing of the jury makes statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff's attorney is the offender." Code Ann. 81-1009.
"Where, during oral argument, an assistant district attorney makes statements deemed by the defendant to be improper and upon a motion for mistrial being made the trial court immediately instructs the jury not to consider such argument, no harmful error appears in the overruling of the motion for mistrial unless it is manifest that an abuse of the trial court's discretion has occurred." Cooper v. State, 229 Ga. 277 (7) (191 SE2d 27). This court has held in Vernon v. State, 152 Ga. App. 616 (263 SE2d 503), that after the trial court has rebuked the offending counsel and instructed the jury appropriately, a "new trial will not be granted unless it is clear that his action failed to eliminate from the consideration of the jury such improper remark." There is nothing in the record to suggest that the trial judge failed to achieve the desired result or that there was an abuse of the trial court's discretion. Therefore, no ground for reversal appears.
C. Deen Strickland, District Attorney, M. C. Pritchard, Assistant District Attorney, for appellee.
Stephen L. Jackson, for appellant.
DECIDED SEPTEMBER 14, 1981.
Thursday May 21 23:45 EDT


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