Home/Supreme Court of Georgia/Wynn v. State

Wynn v. State

196 S.E.2d 401, 230 Ga. 202, 1973 Ga. LEXIS 857
CourtSupreme Court of Georgia
DecidedFebruary 22, 1973
Docket27678
StatusPublished
Cited by18 cases

This text of 196 S.E.2d 401 (Wynn v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wynn v. State, 196 S.E.2d 401, 230 Ga. 202, 1973 Ga. LEXIS 857 (Ga. 1973).

Opinion

Jordan, Justice.

The facts as stated in Division 1 of the majority opinion of the Court of Appeals in this case, Wynn v. State, 127 Ga. App. 463 (194 SE2d 124), disclose *203 that the trial judge, already aware that the defendant had elected to make an unsworn statement, insisted on advising him in the presence of the jury concerning his right to be sworn as a witness and to make an unsworn statement.

The statutory standard provides that "[t]he failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure.” Code § 38-415 as amended (Ga. L. 1962, pp. 133, 134). We granted certiorari to determine whether the Court of Appeals erred in concluding that this standard was not violated in the present case, applying the guidelines disclosed by cases such as Waldrop v. State, 221 Ga. 319 (7) (144 SE2d 372); Hammond v. State, 225 Ga. 545, 546 (170 SE2d 226); and Massey v. State, 226 Ga. 703, 704 (177 SE2d 79), as distinguished from Lynch v. State, 108 Ga. App. 650 (134 SE2d 526).

We reverse. No holding in Waldrop, Hammond or Massey conflicts with this holding under the facts of this case. In our opinion the Court of Appeals correctly applied the law to the facts in Lynch, supra.

What is prohibited by the statute is a comment on the failure to testify. The remarks here made by the court to the defendant in the presence of the jury served to invite attention and emphasize his failure to defend himself under oath, and this is precisely what the statute prohibits. However well-intentioned any of the remarks were to insure that the defendant understood his rights, we think it is improper and prejudicial to advise the defendant of these rights in the presence of the jury, as distinguished from merely instructing the jury of the standards for evaluating an unsworn statement.

Judgment reversed.

All the Justices concur, except Undercofler, J.,who dissents.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brundage v. State
430 S.E.2d 173 (Court of Appeals of Georgia, 1993)
Drake v. State
236 S.E.2d 748 (Supreme Court of Georgia, 1977)
Stapleton v. State
220 S.E.2d 269 (Supreme Court of Georgia, 1975)
Thomas v. State
220 S.E.2d 736 (Court of Appeals of Georgia, 1975)
Woodard v. State
218 S.E.2d 629 (Supreme Court of Georgia, 1975)
Scott v. State
213 S.E.2d 676 (Supreme Court of Georgia, 1975)
Stone v. State
209 S.E.2d 116 (Court of Appeals of Georgia, 1974)
Linder v. State
208 S.E.2d 630 (Court of Appeals of Georgia, 1974)
Hancock v. State
206 S.E.2d 104 (Court of Appeals of Georgia, 1974)
Jester v. State
205 S.E.2d 444 (Court of Appeals of Georgia, 1974)
Booker v. State
203 S.E.2d 194 (Supreme Court of Georgia, 1974)
Roberts v. State
202 S.E.2d 43 (Supreme Court of Georgia, 1973)
Wynn v. State
197 S.E.2d 388 (Court of Appeals of Georgia, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
196 S.E.2d 401, 230 Ga. 202, 1973 Ga. LEXIS 857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wynn-v-state-ga-1973.