Jones v. State

Feb 11, 1971

45932

Versions:123 Ga. App. 310

180 S.E.2d 603

1971 Ga. App. LEXIS 1206

Hall, Presiding Judge.

Defendant appeals from his conviction for voluntary manslaughter and the denial of his motion for a new trial on the sole ground that in his closing argument the district attorney said, "You have a choice between believing the ' sworn testimony of the State’s witnesses or the statement of the defendant.” Defendant contends this is "comment” prohibited by Code Ann. § 38-415 since it draws a comparison between the sworn and unsworn testimony. He cites Lackey v. State, 116 Ga. App. 789 (159 SE2d 188); Carter v. State, 107 Ga. App. 571 (130 SE2d 806); and McCann v. State, 108 Ga. App. 316 (132 SE2d 813).

All of these cases involved argument that not only specifically pointed out that the defendant’s statement was unsworn, but also that the State was unable to cross examine the defendant for this reason. Here the argument was, at most, an allusion to the unsworn nature of the statement.

Submitted February 3, 1971 Decided February 11, 1971. Glenn Zell, for appellant. Lewis R. Slaton, District Attorney, Tony H. Hight, Stephen A. Land, for appellee.

"The mere fact that the jury is made aware that the defendant is making an unsworn statement does not result in reversible error. See Waldrop v. State, 221 Ga. 319 (7) (144 SE2d 372); Hammond v. State, 225 Ga. 545, 546 (170 SE2d 226). Indeed, a jury composed of intelligent persons would be presumed to be aware that the defendant had not been sworn.” Massey v. State, 226 Ga. 703, 704 (177 SE2d 79).

The trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

Eberhardt and Whitman, JJ., concur.