
    7263.
    Daniel v. The State.
   Broyles, J.

Where, on a trial for burglary, there was evidence that the accused was found in possession of a pistol stolen from the burglarized premises, and where in his statement to the jury he said that he bought the pistol from a man named Specks, and where the testimony further showed that before the trial he made to the arresting officers and to other persons a different explanation as to how he obtained the pistol, it was error for the court to charge the jury as follows: “Now, he says in his statement (and you have a right to believe his statement in preference to the sworn evidence, if you see proper to do so) that he bought it [the pistol] from a man named Specks. If you believe that, he would not be guilty. Is that the explanation he gave to the officer when he was arrested? Is that the explanation he has made of it from the beginning until now?” The latter portion of this charge is clearly open to the criticism that it is argumentative and tends to discredit the statement of the accused; and, under the particular facts of this case, it was highly prejudicial to the defendant. In other portions of the charge are expressions which might be construed as an intimation of opinion on the part of the court as to what had been proved; but these errors will doubtless be eliminated on another trial.

Decided April 17, 1916.

Indictment for burglary; from Fulton superior court — Judge B. H. Hill. January 15, 1916.

O. G. Battle, Hewlett, Dennis & Whitman, for plaintiff in error.

Hugh M. Dorsey, solicitor-general, E. A. Stephens, J. W. LeCraw, contra.

Judgment reversed.

Russell, C. J., absent.  