Busbee v. State
| Decision Date | 08 September 1992 |
| Docket Number | No. A92A1145,A92A1145 |
| Parties | BUSBEE v. The STATE. |
| Court | Georgia Court of Appeals |
L. David Wolfe & Associates, Susan E. Teaster, Atlanta, for appellant.
Gerald N. Blaney, Jr., Sol., David M. Fuller, Asst. Sol., for appellee.
Appellant was tried before a jury and found guilty of criminal trespass. She appeals from the judgment of conviction and sentence entered by the trial court on the jury's guilty verdict.
Appellant enumerates as error the trial court's failure to give three jury instructions, including an unrequested instruction on the defense of alibi. In its original brief, the State summarily conceded that the failure to give the unrequested charge on alibi was reversible error and declined to address the merits of appellant's two remaining enumerations of error. However, appellant's two remaining enumerations of error related to the jury charge and were, therefore, obviously likely to recur at the retrial that the State had otherwise conceded was mandated. Accordingly, this court ordered the State to file a supplemental brief addressing those two remaining enumerations. In neither its original nor its supplemental brief did the State ever apprise the court that the right to enumerate any error in the trial court's jury charge had clearly been waived by appellant. Jackson v. State, 246 Ga. 459, 460, 271 S.E.2d 855 (1980).
Moreover, even absent waiver, none of appellant's enumerations would have merit. Contrary to the State's summary concession, it was clearly not error to fail to give an unrequested charge on alibi. Rivers v. State, 250 Ga. 288, 299(8), 298 S.E.2d 10 (1982); Thomas v. State, 176 Ga.App. 53, 55(4), 335 S.E.2d 135 (1985); Johnson v. State, 174 Ga.App. 751, 752(2), 330 S.E.2d 925 (1985). The circumstances of this case did not demand a finding that any of the State's witnesses wilfully and knowingly testified falsely and it was, therefore, not error to fail to give...
To continue reading
Request your trial
-
Collins v. State, A04A0362.
...S.E.2d 660 (2000). 7. Brown v. State, 264 Ga. 803, 807, 450 S.E.2d 821 (1994) (Carley, J., concurring specially); Busbee v. State, 205 Ga.App. 533, 534, 423 S.E.2d 3 (1992); Shaw v. State, 211 Ga.App. 647, 649(2), 440 S.E.2d 245 (1994). 8. (Footnote omitted.) State v. Heggs, 252 Ga.App. 865......
-
Morales v. State
...right to raise the issue (of error in the charge) on appeal.' Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980)." Busbee v. State, 205 Ga.App. 533, 423 S.E.2d 3. Judgment affirmed. POPE, C.J., BIRDSONG, P.J., and ANDREWS, JOHNSON and SMITH, JJ., concur. BEASLEY, P.J., concurs in judg......
-
Tiller v. State, A11A1616.
...determine whether Tiller is legally entitled to a new trial based upon the trial court's erroneous charge. See, e.g., Busbee v. State, 205 Ga.App. 533, 534, 423 S.E.2d 3 (1992). 3. OCGA § 17–8–58(b) provides that a failure to make a contemporaneous and specific objection to a jury charge “s......
-
Brown v. State, s. S94A1099
...concur as to Division 3 of the majority opinion. The State cannot concede error where there is none. See, e.g., Busbee v. State, 205 Ga.App. 533, 534, 423 S.E.2d 3 (1992); Shaw v. State, 211 Ga.App. 647, 649(2), 440 S.E.2d 245 (1994). This court must determine for itself whether error exist......