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CARTER v. THE STATE.
55551.
SHULMAN, Judge.
Theft by taking. Clayton Superior Court. Before Judge Miller.
Appellant was convicted of theft by taking, from which conviction he appeals with 10 enumerations of error. We affirm.
1. Appellant's first three enumerations of error, raising the general grounds, are wholly without merit. The evidence introduced at trial was sufficient to convict appellant of the crime charged.
2. The fourth enumeration of error complains of the denial of appellant's motion for a directed verdict. In accordance with the standard announced in Bethay v. State, 235 Ga. 371 (1) (219 SE2d 743), we have examined all the evidence introduced at trial and have determined that there was sufficient evidence, under the "any evidence" rule of Bethay, to justify the denial of appellant's motion for a directed verdict.
3. In appellant's eighth enumeration of error, he contends that the trial court erred in refusing to give a requested charge on circumstantial evidence. A review of the transcript shows that the trial court gave half the requested charge verbatim and charged the substance of the other half of the requested instruction but not in the exact language requested. Since the charge as given was correct, there was no error in departing from appellant's chosen wording. Cohran v. State, 141 Ga. App. 4 (2) (232 SE2d 355).
4. In his ninth enumeration of error, appellant asserts that a charge on intoxication as no excuse for the commission of a crime was not authorized by the evidence, citing Sweat v. State, 119 Ga. App. 646 (2) (168 SE2d 654). In the present case, however, unlike Sweat, the evidence was sufficient to authorize a finding that appellant committed the crime. That evidence, coupled with appellant's admission that he had been drinking on the night of the crime, was sufficient to authorize the charge. Helton v. State, 84 Ga. App. 485 (2) (66 SE2d 139).
5. The trial judge instructed the jury on conspiracy, which instruction, appellant insists in his tenth enumeration of error, was not authorized by the evidence. On the contrary, the evidence showed the involvement of appellant and another in the crime charged. The instruction was authorized. Battle v. State, 231 Ga. 501 (202 SE2d 449).
Holland v. State, 141 Ga. App. 422 (233 SE2d 497). The trial court properly admitted the tape recording.
Robert E. Keller, District Attorney, Michael D. Anderson, Assistant District Attorney, for appellee.
Monroe Ferguson, Joseph M. Todd, for appellant.
SUBMITTED FEBRUARY 28, 1978 -- DECIDED JUNE 20, 1978.
Friday May 22 03:50 EDT


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