Lindler v. State

Shulman, Judge. Appellant was found guilty of theft by taking. This appeal follows. Although appellant’s brief contains several enumerations of error, we need consider only one enumeration which we find dispositive of this case. During the trial phase, evidence of prior convictions for possession of marijuana; carrying a pistol without a license and carrying a concealed weapon; and robbery by snatching was admitted over objection that defendant’s character was not in issue. Appellant’s assertion that the admission of these prior convictions constituted reversible error is well taken. The state argues that introduction of prior convictions was properly allowed because defense counsel placed appellant’s character in issue. In support of this argument, the state cites defense counsel’s opening statement that the defendant is "not a burglar. . .not a thief,” and other testimony elicited by defense counsel to the effect that the accused had engaged in "fencing” operations. Pretermitting whether an accused’s character may be placed in issue by defense counsel’s opening argument, the statement in that argument was merely a specific denial of the crime charged and was insufficient to generally place the defendant’s character in issue. Smith v. State, 141 Ga. App. 64 (2) (232 SE2d 401). Evidence of the accused’s participation in other criminal activity tended to show bad character. It did not place good character in issue so as to authorize rebuttal. Carroll v. State, 143 Ga. App. 796 (2b) (240 SE2d 197). The admission of appellant’s prior convictions constituted *156 error requiring a new trial. Smith, supra; Carroll, supra; Lester v. State, 145 Ga. App. 847 (3) (244 SE2d 880). Argued October 30, 1978 — Decided February 23, 1979. B. Keith Rollins, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Russell J. Parker, H. Allen Moye, Assistant District Attorneys, for appellee. Judgment reversed. Quillian, P. J., and Birdsong, J., concur.