Smith v. State

146 Ga. App. 428 (1978)

246 S.E.2d 442

SMITH v. THE STATE.

55682.

Court of Appeals of Georgia.

Submitted April 11, 1978.

Decided June 27, 1978.

Pierce & House, Hinton R. Pierce, for appellant.

Richard E. Allen, District Attorney, James W. *429 Purcell, Assistant District Attorney, for appellee.

BIRDSONG, Judge.

Smith appeals his conviction, by a jury, of aggravated sodomy. He enumerates as error the trial court's refusal to grant a mistrial after the following remarks were made during closing argument:

"Prosecutor. `Objection, Your Honor, that is clearly improper [for defense counsel] to argue punishment at this stage of the proceeding.' The Court. `All right, don't argue punishment.' Prosecutor. `The court may put him on probation or something.'"

The trial court thereafter instructed the prosecutor not to argue punishment and explicitly cautioned the jury not to consider either punishment or probation, with the final instruction that "sentencing of the defendant is a job for the Court. You are only concerned with the guilt or innocence of the defendant.... You are not to give that any consideration whatsoever, the question of sentence." Under these circumstances, the prosecutor's remarks were not in violation of Code Ann. § 27-2206. Berrian v. State, 139 Ga. App. 571 (228 SE2d 737); Terhune v. State, 117 Ga. App. 59 (159 SE2d 291). The trial court did not err in refusing to grant a mistrial.

Judgment affirmed. Bell, C. J., and Shulman, J., concur.