Westbrook v. State

Deen, Presiding Judge.

1. The sole issue on appeal is whether, on the trial of a defendant, the spouse must make an election not to testify outside the presence of the jury or whether he or she may be compelled, if asked, to state such election in the jury’s presence.

A divided court in Merneigh v. State, 123 Ga. App. 485 (2) (181 SE2d 498) (1971) held that to compel the answer before the jury did not constitute harmful or reversible error. It will be noted however that the court did not in totidem verbis approve the practice. In Colson v. State, 138 Ga. App. 366 (226 SE2d 154) (1976) a divided…