Smith v. State

On Motion for Rehearing.

Appellant contends that in Division 3 we overlooked the cases of Doyle v. Ohio, 423 U. S. 823 (96 SC 2240, 49 LE2d 91) (1976) and Jackson v. State, 237 Ga. 264 (227 SE2d 245) and that these decisions require a different result. In both of these cases improper testimony of post-arrest silence was admitted into evidence over objection, and in Jackson the trial court instructed the jury that they could consider the confession of one defendant made in the presence of his silent co-defendant. Neither of these decisions is controlling in the case sub judice because the improper unsolicited remark herein made was immediately stricken from the record and curative instructions given the jury. Unlike the defendants in Doyle and Jackson, the appellant was not *390prejudiced nor harmed.

Accordingly, the judgment is adhered to.

Motion for rehearing denied.