Shelly v. State

108 Ga. App. 6 (1963)

132 S.E.2d 228

SHELLY v. THE STATE.

40157.

Court of Appeals of Georgia.

Decided June 13, 1963.

James R. Venable, for plaintiff in error.

Richard Bell, Solicitor General, Dennis F. Jones, Assistant Solicitor General, contra.

NICHOLS, Presiding Judge.

The defendant was indicted, tried and convicted of the offense of burglary in the Superior Court of DeKalb County. Thereafter, the defendant's amended motion for new trial was overruled and error is now assigned on such adverse judgment. Held:

1. The defendant moved for a mistrial before any evidence was introduced because of certain remarks made by the assistant *7 solicitor general during his preliminary statement to the jury as to what he proposed to prove on the trial. The trial court promptly instructed the jury: "Gentlemen of the jury, counsel for both the State and the defendant have the right to state to you their contentions, what they expect to prove in the trial of the case. Their statements are not evidence, but only their contentions, and you are not to consider them as evidence in any shape, form or fashion. It is only the statement of the contentions of what they expect to prove." Under the decision of the Supreme Court in Ledford v. State, 215 Ga. 799 (4) (113 SE2d 628), the judgment refusing to declare a mistrial was not error, and the special ground of the motion for new trial is without merit.

2. Special grounds 5 and 6 complain of the admission of certain evidence, exhibits, because they were obtained by illegal search and seizure. "An admission of the accused in open court, made as a part of his statement on the trial, may be treated by the jury as direct evidence of that fact." Hargroves v. State, 179 Ga. 722 (4) (177 SE 561). In his statement the defendant admitted that the exhibits complained of were on his person or in his automobile and the admission of the evidence complained of, if error, was not harmful, for where a defendant in his statement admits certain facts as being true the admission of illegal evidence over proper objection of the same facts is not harmful error. See Cummings v. State, 106 Ga. App. 118 (126 SE2d 241). No reversible error is shown by ground 5 or 6 of the amended motion for new trial.

3. The evidence adduced on the trial authorized the conviction and the usual general grounds of the motion for new trial are without merit.

Judgment affirmed. Frankum and Jordan, JJ., concur.