McCann v. State , 108 Ga. App. 316 ( 1963 )

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108 Ga. App. 316 (1963) 132 S.E.2d 813
McCANN
v.
THE STATE.
40307.
Court of Appeals of Georgia.
Decided September 16, 1963.
Guy B. Scott, Jr., for plaintiff in error.

Preston M. Almand, Solicitor, contra.

NICHOLS, Presiding Judge.

The defendant was indicted and convicted for the offense of driving under the influence of intoxicating liquor. In charging the jury the trial court instructed them in part as follows: "Further, Gentlemen, I charge you that up until last year when the General Assembly changed this law and it was approved by the Governor, that in Georgia no defendant in any criminal case whether it be felony or misdemeanor could do more than give his statement, without being placed under oath. The law did not permit him to be placed under oath though he might desire so to be. The law at this time, Gentlemen, is this: In addition to the law just given you, the defendant may now, if he elects to do so, be sworn and be cross examined as other witnesses in the case. That, however, Gentlemen, I charge you is another matter entirely within his election, and the fact that this defendant has not elected to be sworn and cross examined and give his testimony under oath, is not to be considered, Gentlemen, as a circumstance unfavorable to him for that is a matter wholly for his determination and wholly within his legal rights." The defendant's amended motion for new trial assigns error on such excerpt of the charge. Held:

*317 1. The Act of 1962 (Ga. L. 1962, p. 133; Code Ann. § 38-415), expressly provides that no comment shall be made because of the failure of a defendant to testify under oath (see Carter v. State, 107 Ga. App. 571, 130 SE2d 806), and such prohibition applies equally to the court as to the solicitor. Accordingly, the trial court erred in overruling the defendant's amended motion for new trial which assigned error on such excerpt from the charge.

2. Inasmuch as the case must be again tried and the evidence may not be the same on another trial, the usual general grounds of the motion for new trial are not passed upon.

Judgment reversed. Frankum and Jordan, JJ., concur.