SUBMITTED FEBRUARY 3, 1971.
DECIDED FEBRUARY 11, 1971.
Voluntary manslaughter. Fulton Superior Court. Before Judge Wofford.
Glenn Zell, for appellant.
Lewis R. Slaton, District Attorney, Tony H. Hight, Stephen A. Land, for appellee.
Defendant appeals from his conviction for voluntary manslaughter and the denial of his motion for a new trial on the sole ground that in his closing argument the district attorney said, "You have a choice between believing the sworn testimony of the State's witnesses or the statement of the defendant." Defendant contends this is "comment" prohibited by Code Ann. § 38-415 since it draws a comparison between the sworn and unsworn testimony. He cites Lackey v. State, 116 Ga. App. 789 ( 159 S.E.2d 188); Carter v. State, 107 Ga. App. 571 ( 130 S.E.2d 806); and McCann v. State, 108 Ga. App. 316 ( 132 S.E.2d 813).
All of these cases involved argument that not only specifically pointed out that the defendant's statement was unsworn, but also that the State was unable to cross examine the defendant for this reason. Here the argument was, at most, an allusion to the unsworn nature of the statement.
"The mere fact that the jury is made aware that the defendant is making an unsworn statement does not result in reversible error. See Waldrop v. State, 221 Ga. 319 (7) ( 144 S.E.2d 372); Hammond v. State, 225 Ga. 545, 546 ( 170 S.E.2d 226). Indeed, a jury composed of intelligent persons would be presumed to be aware that the defendant had not been sworn." Massey v. State, 226 Ga. 703, 704 ( 177 S.E.2d 79).
The trial court did not err in denying defendant's motion for new trial.
Judgment affirmed. Eberhardt and Whitman, JJ., concur.