concurring specially in Division 2. While I concur with the holding in Division 2, I am of the opinion that under the current status of our law an accused has no constitu*830tional right to demand that he be “questioned by his counsel to elicit his unsworn statement to the court and jury in his defense.” Language to the contrary is found in three recent decisions of this court, Shoffeitt v. State, 107 Ga. App. 217, 218 (129 SE2d 572), Middlebrooks v. State, 107 Ga. App. 587 (130 SE2d 798), Lovett v. State, 108 Ga. App. 478 (133 SE2d 595), but a review of the opinion of the Supreme Court of the United States in Ferguson v. Georgia, 365 U.S. 570 (81 SC 756, 5 LE2d 783) convinces me that no such right exists today under the current Georgia law. The Middlebrooks and Lovett cases rely upon Shoffeitt and Ferguson for their holding. The Shoffeitt case assumed without deciding that the holding in the Ferguson case was applicable to Code § 38-415 even though the legislature had repealed and re-enacted it and had repealed the incompetency provision of Code § 38-416. The specific holding of the Shoffeitt case went to the question whether an accused, who makes an unsworn statement, can be compelled to answer questions on cross examination. 26 Ga. Bar J. 224-228.
In Ferguson v. Georgia, 365 U.S. 570, supra, error was assigned only on the failure of the trial court to allow the defendant’s counsel to ask him questions during his unsworn statement. The Supreme Court of the United States stated in the beginning of its opinion that its decision necessarily involved consideration of Code Ann. § 38-416, the incompetency statute, as well as Code Ann. § 38-415, the unsworn statement statute. “The court devoted well over half of its decision to a discussion of the history of the incompetency rule and its gradual demise everywhere in the common law world except Georgia.” 47 American Bar J. 727, 728. Its narrow ruling was as follows: “We therefore hold that, in effectuating the provisions of [Code] § 38-415, Georgia, consistently with the Fourteenth Amendment, could not, in the context of Code § 38-416, deny appellant the right to have his counsel question him to elicit his statement. We decide no more than this.” (Emphasis supplied). One cannot read any mandate from this holding that, taken out of context with Code Ann. § 38-416, an accused has a right to have his counsel question him to elicit his unsworn statement. As Justice Frankfurter pointed out in his concurring opinion, “Standing alone, § 38-415 *831raised no constitutional difficulty. Only when considered in the context of the incompetency provision does it take on meaning. . . . Considered in vacuo, § 38-415 fails, as has been pointed out, to present any reasonable doubts as to its constitutionality, for it provides only an additional right.” Ferguson v. Georgia, supra, 599, 600. “The court’s rationale was based upon the existence of the incompetency rule which denied the accused the right to make a sworn statement.” 24 Ga. Bar J. 448, 450.
In 1962 the legislature enacted a new law to replace Code Ann. §§ 38-415 and 38-416. Ga. L. 1962, p. 133. It repealed the incompetency rule of Code Ann. § 38-416 and gave a defendant the right to be sworn as a witness and be subjected to direct and cross examination like any other witness, and it also preserved the right to use the unsworn statement. While the statutory right to the unsworn statement remains the same as under the former law, the aid of counsel to question the defendant to elicit the unsworn statement is no longer required to afford the defendant due process under the Fourteenth Amendment. The defendant, now able to be sworn and have counsel examine him, has the same rights that exist in every State of the Union and in the Federal courts. In Georgia a defendant who does testify as a witness has greater protection than in the Federal courts by virtue of the fact that his general character cannot be assailed unless he first actually puts it in issue. Code Ann. § 38-415; 14 Mercer L. R. 42, 47. The right to make an unsworn statement is merely “an additional right,” not required by the Federal Constitution as essential to a fair trial. Thus the present Georgia law gives the defendant when sworn as a witness the same and even greater rights than do other American jurisdictions, and gives the defendant the additional or alternative right to make any unsworn statement he deems proper for his defense without the aid of counsel to elicit the statement. How can it possibly be said that the giving of this additional or alternative right violates the fundamental principles of liberty and justice guaranteed by the Fourteenth Amendment? In some cases counsel may consider it advantageous for the defendant to waive his right to be examined by counsel as a witness and to elect to make an unsworn statement, thereby depriving the State of the *832opportunity of cross examination. I believe that following the 1962 Act (Ga. L. 1962, p. 133) the law now is as enunciated by the Georgia Supreme Court before Ferguson v. Georgia, 365 U.S. 570, supra: “The right to make a statement in his behalf is a personal right granted to the defendant by Code § 38-415, [currently Ga. L. 1962, p. 133] and extends no further than to permit him personally to make to the court and jury just such statement as he deems proper in his defense. His counsel has no right to ask him questions while he is making a statement. The trial judge, however, in his discretion, can permit his counsel to ask him questions or make suggestions to him relating to his statement, while he is making it or when he has concluded it.” Corbin v. State, 212 Ga. 231, 232-233 (91 SE2d 764).