Driver v. State

164 S.E.2d 360, 118 Ga. App. 559, 1968 Ga. App. LEXIS 1457

• Court: Court of Appeals of Georgia
• Decided: October 25, 1968
• Docket: 44022
• Status: Published

Opinion

Hall, Judge.

The defendants were tried on two joint indictments for assault and battery on two persons. They appeal from the sentences of two years for each defendant.

1. The trial court did not err in overruling the defendants’ motion for mistrial on the grounds that in questioning witnesses, and in referring to the defendants as hoodlums in his argument to the jury, the solicitor had placed their character in issue. Byrd v. State, 78 Ga. App. 824, 833 (52 SE2d 330).

2. The court charged the jury: “The defendants have made to you a statement, which they had a right to do, the law being that in all criminal trials, the accused shall have the right to make to the court and jury such statement in the case as they may deem proper in their defense. It shall not be under oath, and shall have such force only as the jury trying the case thinks right to give it. You may believe it in preference to the sworn testimony in the case.”

Submitted October 8, 1968 Decided October 25, 1968. Johnson & Johnson, Hollis B. Johnson, for appellant.

In our opinion the trial judge’s charge was proper. It did not amount “to a direct comment on [the defendants’] failure to submit to the compulsion of an oath . . .” Crowe v. State, 117 Ga. App. 598 (1) (161 SE2d 512). The objectionable language in the Crowe case was “He incurs no penalty by failure to tell you the truth,” which followed a comment that the accused was not under oath and not subject to cross examination except by his own consent.

Judgment affirmed.

Bell, P. J., and Quillian, J., concur.