I dissent from Division 2 of the majority opinion and from the judgment of affirmance in so far as the sentence imposed is concerned.
It is clear to me that under the Georgia statute Code Ann. § 27-2534), . . only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible.” The evidence relative to revocation was not admissible in this case, and for the state to offer it and the court to admit it over objection, and for the state to then withdraw it and for the trial judge to then instruct the jury to erase such evidence from their minds does not, in my opinion, add up to “harmless error.” Such evidence was quite harmful in so far as the sentence to be imposed by the jury was concerned.
I would reverse the judgment below, directing the trial court to conduct a new sentencing trial.
I respectfully dissent.
I am authorized to state that Justice Ingram concurs in this dissent.