
    40421.
    LYNCH v. THE STATE.
   Frankum, Judge.

1. The defendant having made an unsworn statement to the court and jury in his defense, the court erred in charging the jury to the effect that the defendant had the right to testify under oath as any other witness and to be examined and cross examined as any other witness, and in connection with such charge stating to the jury, “Now, the defendant in this case elected to make an unsworn statement.” Code § 38-415, as amended by Ga. L. 1962, pp. 133, 134, provides in part: “The failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure.” The court erred in overruling the second special ground of defendant’s motion for a new trial assigning error because of such charge. McCann v. State, 108 Ga. App. 316 (132 SE2d 813).

Decided November 14, 1963.

Allyn M. Wallace, for plaintiff in error.

Cohen Anderson, Solicitor General, contra.

2. The first special ground of the motion relates to a matter not likely- to occur on another trial; the third special ground is not meritorious, and the general grounds are not passed upon inasmuch as the evidence on another trial may not be the same.

Judgment reversed.

Nichols, P. J., and Jordan, J., concur.  