The appellant was convicted of operating a motor vehicle while under the influence of intoxicants. The case was appealed and is here for review. Held:
1. The defendant did not make an unsworn statement, but was sworn and examined as a witness. The appellant enumerates as error the following charge of the trial judge: "Now ladies and gentlemen of the jury, in this state, in all criminal cases, the defendant shall have the right to make to the court and jury such statements in the case as he may deem proper, in his defense. It shall not be under oath and shall have such force only as the jury may think right to give it. They may believe it in preference to the sworn testimony in the case. The defendant shall not be compelled to answer any question on cross examination should he think proper to decline to answer. In the alternative, however, I charge you, if the defendant wishes to testify and announces in open court his intention to do so, he may so testify in his own behalf. If so, he shall he sworn as any other witness, and may be examined and cross examined as any other witness."
The instruction was not adapted to the facts and not applicable in this case where the defendant testified as a witness. In Pickler v. State, 220 Ga. 224 (138 SE2d 171), where the defendant was sworn as a witness, a charge which was substantially the same as the one objected to in the case sub judice was held to be error.
2. The remaining enumerations of error are either without merit or not likely to occur upon the next trial of this case.
Wilson P. Darden, Solicitor, for appellee.