Defendant Lunsford and two other individuals were jointly indicted for the offense of felony of theft by taking property of the value of more than $200 from a retail store with the intention of depriving the owner thereof. The criminal offense involved a scheme to defraud the store in which one of the co-indictees, an employee of the store, would sell merchandise far below value as the merchandise was checked out at the cash register. Security officers at the store received information to be on the lookout, and given a description, for a white male and a white female who would be coming into the store and would check out at co-indictee Whiten’s counter. The suspects who fitted the physical description were observed in the store as they started putting articles into their shopping cart, thereafter emptying the shopping cart on the counter of the employee co-indictee and as the items on the register were tabulated; and a $5 bill presented for the items whose value was over $200. The two suspects were then apprehended outside the store and taken to the security office. The employee co-indictee was also taken into the security office.
The two co-indictees entered pleas of guilty to the charge of theft by taking. We are here involved only with the male defendant (Lunsford) who was along with the *447female companion as she presented the $5 and received the merchandise worth more than $200. Both of these co-indictees testified for the defendant. The co-indictee Campbell, who had paid for the merchandise, testified positively that the defendant had no knowledge of the scheme to defraud the store, that he was only along to assist her in shopping. The employee co-indictee testified that she had met this defendant on two occasions, that she did not know whether he knew of the transaction in which she and the co-indictee Campbell were seeking to defraud the store.
Defendant was convicted and sentence imposed of three years (one year in confinement and two years on probation). Defendant appeals. Held:
1. The defendant here had assisted the female co-indictee in loading the merchandise from the shelves, unloading same at the check-out counter and then pushed the cart filled with merchandise outside the store. Under Code § 26-802 even though he did not directly commit the crime he could be indicted, tried, convicted and punished. Under this evidence the jury would be authorized in finding that there was knowledge that a crime was being committed. Moody v. State, 126 Ga. App. 108, 110 (189 SE2d 889). Compare Huncke v. State, 137 Ga. App. 299 (223 SE2d 492). The evidence was sufficient to authorize the jury as trier of fact to convict the defendant. The first five enumerations of error dealing with the denial of the motion to direct a verdict in favor of defendant and contending the evidence was insufficient to support the verdict and the verdict was contrary to law and the evidence are not meritorious.
2. During the cross examination of a state’s witness who was present when the co-indictee Campbell allegedly told this witness that the defendant was not involved, he testified that she did not so tell him. The question was then asked, "Do you recall whether or not she did?” The answer was, "What she said was that she didn’t want him to go to jail and then she went on to say that he was on probation from Reidsville.” Whereupon, counsel for defense moved for a mistrial contending the answer was irrelevant and placed the general character of the defendant in issue. Defendant by brief cites the case of *448Brown v. State, 118 Ga. App. 617 (165 SE2d 185). However, this answer was not elicited improperly by the state but by the defendant. See Ramey v. State, 238 Ga. 111, 112 (2) (230 SE2d 891); Jones v. State, 139 Ga. App. 643 (1) (229 SE2d 121). The trial judge did not abuse his discretion by refusing to grant a mistrial.
Argued October 31, 1977 — Decided March 9, 1978 — Rehearing denied March 30, 1978 — Cert, applied for. Douglas R. Haynie, for appellant. Thomas J. Charron, District Attorney, Sallie G. Thompson, Assistant District Attorney, for appellee.It is also noted that the trial judge instructed the jury to disregard the statement regarding probation and specifically asked the jury members to nod their heads affirmatively if they could disregard it. All twelve jurors then nodded affirmatively.
3. The court did not err in charging the substance of Code §§ 26-802, 26-603 and 26-604, along with other sections involving the criminal law with reference to parties to a crime, presumptions of law as to the conduct of persons, and consequences of one’s acts. The court did not assume by giving such instructions that the defendant committed the crime. However, after giving the various Code sections with reference to the laws involved herein the court then charged the jury that, "the mere presence of one where a crime is being committed without any evidence to further show participation in that crime, directly or indirectly, is insufficient upon which to base a conviction.” He then advised the jury that this is a matter for you to determine "and only you.” There is no merit in this complaint. Under no circumstances were these instructions, as to the law involved, burden-shifting under State v. Moore, 237 Ga. 269 (1) (227 SE 2d 241).
Judgment affirmed.
Bell, C. J., Been, P. J., Quillian, P. J., Webb, Shulman and Birdsong, JJ., concur. Banke, J., concurs specially. Smith, J., dissents.