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Lawskills.com Georgia Caselaw
SILVEY v. THE STATE.
54055.
DEEN, Presiding Judge.
Burglary. Fulton Superior Court. Before Judge Alverson.
1. On a trial for the offense of burglary, it was not error in the absence of request for the trial court to fail to charge the law relating to the offense of receiving stolen goods. State v. Stonaker, 236 Ga. 1 (222 SE2d 354).
3. Alibi as a defense involves the impossibility of the defendant's presence at the scene of the crime at the time of its commission. Code 38-122. Where the sole defense is alibi or it is supported by testimony, an instruction on this point must be given even in the absence of request. Willingham v. State, 131 Ga. App. 851 (1) (207 SE2d 249). "Where the competent testimony does not exclude the possibility of the defendant's presence with respect to the time and place of the offense for which he was indicted, there is no error in not charging alibi. Bennett v. State, 128 Ga. App. 260 (196 SE2d 413)." Welch v. State, 130 Ga. App. 18 (5) (196 SE2d 413). The state established without contradiction that the burglary was committed between 11 a.m. and 5 p.m. The defendant testified that he worked in the afternoon, and said, "I was supposed to have been working in the morning but I stopped off . . ." and "I got to drinking and I don't really know what time I [got home]," but he did remember that it was daylight, and "I was thinking it was in the morning." This being the only testimony, the failure to charge alibi without request was not error.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. David Petersen, Assistant District Attorneys, for appellee.
Glenn Zell, for appellant.
SUBMITTED JUNE 6, 1977 -- DECIDED JUNE 15, 1977 -- REHEARING DENIED JUNE 30, 1977 -- CERT. APPLIED FOR.
Friday May 22 06:52 EDT


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