Henderson v. State, 53496
| Decision Date | 25 February 1977 |
| Docket Number | No. 53496,No. 2,53496,2 |
| Citation | 141 Ga.App. 430,233 S.E.2d 505 |
| Court | Georgia Court of Appeals |
| Parties | J. W. HENDERSON v. The STATE |
C. C. Perkins, Carrollton, for appellant.
William F. Lee, Jr., Dist. Atty., Robert H. Sullivan, Asst. Dist. Atty., Carrollton, for appellee.
Defendant appeals his conviction for burglary. Held :
1. The evidence was sufficient to sustain the verdict and judgment.
2. The failure to charge a lesser included crime was not error in the absence of a written request by the defendant. State v. Stonaker, 236 Ga. 1, 2, 222 S.E.2d 354. See Burton v. State, 137 Ga.App. 686(2), 224 S.E.2d 876.
3. The defendant contends it was error to fail to charge that the jury might recommend that defendant could be punished as for a misdemeanor. Under Code Ann. § 27-2503 (Ga.L.1974, pp. 352, 357) this principle no longer need be charged. Winslow v. State, 135 Ga.App. 773, 219 S.E.2d 21; Cloud v. State, 136 Ga.App. 244, 247(2), 220 S.E.2d 763.
4. It is urged that the trial judge erred in failing to instruct the jury, without request, on misfortune or accident (Criminal Code of Georgia § 26-602; Code Ann. § 26-602 (Ga.L.1968, pp. 1249, 1269)) and on mistake of fact (Criminal Code of Georgia § 26-705; Code Ann. § 26-705 (Ga.L.1968, pp. 1249, 2170; 1969, pp. 857, 859)).
In Whigham v. State, 131 Ga.App. 261, 262, 205 S.E.2d 467, 468, this court held that a charge on § 26-602 was not required "in the absence of a timely written request where the court charges on the essential elements of the crime with which the defendant is charged, including the necessity of intent, with which the crime is committed." Here misfortune or accident was not a material issue. However, this is not true as to mistake. The defendant testified he went into the store, which he was charged with burglarizing and where he was caught, thinking it was open and tried subsequently to leave but was unable to because the door had locked. In view of the time (late at night) and many other factors the jury was authorized to find such story incredible. Nevertheless, it was the defendant's sole defense and excuse. Hence, the failure to give a charge on the subject, even without request, was error. Glaze v. State, 2 Ga.App. 704(2, 3), 58 S.E. 1126; Wittle v. State, 50 Ga.App. 170(1), 177 S.E. 356; McRoy v. State, 131 Ga.App. 307, 308(3), 205 S.E.2d 445.
Judgment reversed.
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...718(3), 213 S.E.2d 20. However, the last two cases in nowise apply, inasmuch as the facts are entirely different. See Henderson v. State, 141 Ga.App. 430(4), 233 S.E.2d 505; McRoy v. State, 131 Ga.App. 307, 308(3), 205 S.E.2d 445. The trial court erred even though the trial court may have f......
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Gunter v. State
...appellants' sole defense and that "the failure to give a charge on the subject, even without request, was error." Henderson v. State, 141 Ga.App. 430, 233 S.E.2d 505 (1977). While a trial court is required to charge on a criminal defendant's sole defense of mistake of fact even absent a req......
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Harris v. State, 55349
...and that no charge was given. The disagreement here concerns whether such a charge was required absent a request. Henderson v. State, 141 Ga.App. 430, 233 S.E.2d 505 (1977), relied upon by the appellant, held that a failure to charge on mistake, when mistake was the defendant's sole defense......
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Curtis v. State, A07A1038.
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