Brooks v. State

236 Ga. 108 (1976)

223 S.E.2d 79

BROOKS et al. v. THE STATE.

30553.

Supreme Court of Georgia.

Submitted December 3, 1975.

Decided January 27, 1976.

*109 Hudson John Myers, for appellants.

Lewis R. Slaton, District Attorney, Arthur K. Bolton, Attorney General, for appellee.

UNDERCOFLER, Presiding Justice.

James Calvin Brooks, John Toles and John Jackie Varner were indicted for the armed robbery of Dean Timmons. Brooks and Toles were jointly tried, convicted, and sentenced to serve 15 years each. They appeal to this court.

The appellants were positively identified by Dean Timmons, cafeteria manager, as the two men who entered the cafeteria and committed the armed robbery. Brooks freely and voluntarily made a statement to the police officers that he and two others had committed the robbery.

The appellants contend that the trial court erred in denying their motion for a mistrial because certain evidence which was not admitted during the trial was in the possession of the jury during its deliberation.

The record shows that after the jury returned its verdict, counsel stated to the court that state's Exhibit No. 2 had been out with the jury, that he had previously objected to this evidence, and that he believed that the court had sustained his objection to the exhibit. State's Exhibit No. 2 was a copy of the Witness' Line-up Identification Form of the Atlanta Police Department on which the manager had indicated when he viewed the line-up that he could identify the person numbered 6.

There is no merit in this contention. "Harm as well as error must be shown to authorize a reversal by this court." Bateman v. Bateman, 224 Ga. 20, 21 (159 SE2d 387) (1968); Chenault v. State, 234 Ga. 216 (2) (215 SE2d 223) (1975).

Judgment affirmed. All the Justices concur.