Duncan v. State

Guebry, J.

On the trial of one charged with attempted larceny from the house it was improper for the solicitor in his argument to the jury to state as follows: “This is not the first time the defendant has been charged with stealing; he was charged and convicted once before for stealing from Mulligan’s store, and he was involved with the same negro as in this case, Harper Miller,” when there was no evidence on which to base such a statement and the defendant’s counsel immediately objected thereto and moved for a mistrial, the court merely stating in reply to the objection: “Gentlemen of the jury, you heard the evidence and know whether or not the statement made by the solicitor came from the. witness.” While the State is the accuser in criminal cases, it will not permit its representatives to use unfair means against the accused pending the trial, or to comment upon facts not put in evidence, or make remarks calculated to prejudice the accused in the minds of the jury. Bennett v. State, 86 Ga. 401 ( 12 S. E. 806 , 12 L. R. A. 449, 22 Am. St. R. 465 ); Veazey v. Glover, 47 Ga. App. 826 ( 171 S. E. 732 ), and cit.; Pelham & Havana R. Co. v. Elliott, 11 Ga. App. 621 ( 75 S. E. 1062 ); Morris v. Maddox, 97 Ga. 575 ( 25 S. E. 487 ); Southern Ry. Co. v. Gentle, 36 Ga. App. 11 ( 135 S. E. 105 ); Ivey v. State, 113 Ga. 1062 ( 39 S. E. 423 , 54 L. R. A. 959); Fair v. State, 168 Ga. 409 ( 148 S. E. 144 ); Bryan v. State, 36 Ga. App. 656 ( 137 S. E. 797 ); Smoot v. State, 146 Ga. 76 ( 90 S. E. 715 ); Butler v. State, 142 Ga. 286 ( 82 S. E. 654 ).

Judgment reversed.

Broyles, O. J., and MacIntyre, J., concur.