This appeal, from an armed robbery conviction in Fulton Superior Court, presents only one issue for decision: Did the trial court err in failing to charge the jury, upon the written request of the defendant to do so, that the defendant's failure to testify in his own favor shall not create a presumption against him? Two recent decisions of this court, noted below, lead us to conclude that it was error and that a new trial must be ordered in this case.
In fairness to the capable trial judge who presided at this trial, it should be observed that the defendant was tried on July 7, 1975, before this court had passed on the issue. At the time of the trial, Linder v. State, 132 Ga. App. 624
, 625 (3) (208 SE2d 630
) (1974) was being followed by the trial courts. Linder held that such a charge was error. On September 5, 1975, this court decided Woodard v. State, 234 Ga. 901
, 903 (218 SE2d 629
) (1975), which held that such a charge would be proper but that it was not "error to fail to so charge in the absence of a proper and timely request." This was the first precursor of the decision we reach in this case. Woodard expressly disapproved of the holding in Linder v. State, supra.
After Woodard came Stapleton v. State, 235 Ga. 513 (220 SE2d 269) (1975)
. In that case, the trial judge gave, without request by the defendant, an instruction to the jury that is similar to the instruction requested but refused in the present case. We held that it was not error for the charge to be given and that such a charge "was, in fact, beneficial to the defendant." Id., p. 520.
It necessarily follows, as a matter of logical reasoning, that when a proper charge on this subject is timely requested by the defendant, it is error for the trial judge to fail to give it. This error requires a new trial.
Henry C. Ross, for appellant.