Opinion
61558.
DECIDED FEBRUARY 18, 1981.
Burglary. Douglas Superior Court. Before Judge Noland.
G. Michael Hartley, for appellant.
W. A. Foster III, District Attorney, Frank C. Winn, Assistant District Attorney, for appellee.
Ricky Lee Tyson appeals from his conviction of burglary following the denial of his motion for a new trial. He contends that the trial court erred in failing to administer the oath to the jury panel prior to voir dire and permitting the Assistant District Attorney who tried the case to administer it over his objection. Held:
1. This case is controlled adversely to the state by this court's ruling in Ates v. State, 155 Ga. App. 97 ( 270 S.E.2d 455) (1980), wherein this court held that Code Ann. § 59-704.1 mandates that the oath to each panel be administered by the trial judge. Permitting the prosecuting arm of the state to administer the oath is presumptively prejudicial and as stated in Ates, supra, at 98, "we are unable to determine the prejudice that may form in the jurors' minds when the oath is administered by the [District Attorney]."
2. As this case must be remanded for retrial, it is not necessary to rule upon the remaining enumerations of error which are all based upon evidentiary matters and requests for charge.
Judgment reversed. Banke and Carley, JJ., concur.