Davis v. State , 166 Ga. App. 327 ( 1983 )

Deen, Presiding Judge.

Appellant was convicted of armed robbery and sentenced to 5 years’ imprisonment followed by 2 years’ probation. On appeal, his sole contention is that the trial court erred in allowing a witness for the state to testify without being sworn.

The transcript shows that the state called as a witness an individual who had been charged with the same offense as appellant. Prior to placing him under oath, the assistant district attorney asked the witness a few questions to ascertain whether he understood that he did not have to testify at the trial and that if he did, his testimony could be used against him in another court action. Counsel for appellant timely objected to these pre-oath answers of the witness. Before any examination of the witness, the oath was properly administered.

OCGA § 24-9-60 (Code Ann. § 38-1701) provides that “[t]he sanction of an oath or affirmation equivalent thereto shall be necessary to the reception of any oral evidence.” Quite clearly, no oral evidence was obtained from the witness before the proper administration of the oath, and thus no error occurred. We find nothing to support appellant’s assertion that allowing the witness to answer, prior to being sworn, the few questions about his right not to testify created the impression for the jury that the witness was somehow more truthful.

Judgment affirmed.

Banke and Carley, JJ., concur.