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Lawskills.com Georgia Caselaw
MARTIN v. THE STATE.
68079.
MCMURRAY, Chief Judge.
Armed robbery. Fulton Superior Court. Before Judge McKenzie.
Defendant was indicted for the offense of armed robbery along with three others. He was tried separately. Following his conviction and sentence for the lesser included offense of robbery and the denial of his motion for new trial, he appeals. Held:
2. The remaining enumeration of error is that the trial court erred in failing to charge on the law of alibi where the defendant's sole defense was supported by his sworn testimony and by the testimony of other witnesses. However, a charge on alibi is warranted only where there is evidence which reasonably excludes the possibility of defendant's presence at the scene of the crime at the time of its commission. See OCGA 16-3-40. The State never contended the defendant was actually present at the time of the robbery but that he had set up the robbery and left the scene shortly before it took place. Consequently, alibi was not in issue in the case. See Sims v. State, 165 Ga. App. 881, 884 (6) (303 SE2d 60). Defendant's testimony with reference to establishing an alibi is at most vague and uncertain and it is ordinarily not error to fail to charge on alibi absent a written request. See Brown v. State, 251 Ga. 598, 601 (5), 602 (308 SE2d 182); Rivers v. State, 250 Ga. 288, 300 (8) (298 SE2d 10). Furthermore, there was no evidence submitted which precluded the defendant from meeting with a co-conspirator immediately before the robbery consequently there was no error to fail to charge on alibi where there was no written request to charge. See in this connection Patrick v. State, 245 Ga. 417, 422 (7) (265 SE2d 553); Adams v. State, 246 Ga. 119, 122 (2) (269 SE2d 11). There is no merit in this complaint.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Russell J. Parker, Margaret V. Lines, Assistant District Attorneys, for appellee.
Kenneth D. Feldman, for appellant.
DECIDED MAY 8, 1984.
Thursday May 21 18:28 EDT


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