Opinion
39469.
DECIDED APRIL 27, 1962.
Burglary. Walker Superior Court. Before Judge Fariss.
Cook Palmour, Bobby Lee Cook, A. Cecil Palmour, for plaintiff in error.
Earl B. Self, Solicitor-General, contra.
Grady Taylor, under an indictment charging him with the offense of burglary, was tried and convicted in the Superior Court of Walker County. His amended motion for new trial on the general and two special grounds was denied and he excepted to that judgment. Held:
1. There being no evidence of a confession of the defendant adduced on the trial of this case, it was reversible error for the trial court to charge on the law of confessions. Pressley v. State, 201 Ga. 267 ( 39 S.E.2d 478), and cases therein cited. The trial court therefore erred in denying special ground 1 of the amended motion, which assigned error on the court's charge relating to the law of confessions as being unwarranted by the evidence. The contention of the State that this charge was authorized by the evidence relating to a declaration made by the defendant to the arresting officer is without merit since said declaration amounted to nothing more than an incriminating admission which did not admit every material element of the crime charged against the defendant and was not therefore a confession. Blount v. State, 213 Ga. 552 ( 100 S.E.2d 172); and Lee v. State, 81 Ga. App. 63 (1) ( 57 S.E.2d 710). Where the accused makes only an incriminating admission, not amounting to a confession, it is error for the court to charge on the law of confessions. Pressley v. State, 201 Ga. 267, supra.
2. The remaining special ground contended that the trial court erred in refusing to allow the defendant upon request to be sworn and testify under oath. It is unnecessary to pass on this ground for the reason that under the act of 1962 (Ga. L. 1962, p. 133), amending Code § 38-415, the defendant on the retrial of this case may elect to be sworn and testify in his own behalf.
3. The general grounds are not ruled upon since the case is to be tried again.
Judgment reversed. Nichols, P. J., and Frankum, J., concur.