167 Ga. App. 225 | Ga. Ct. App. | 1983
Donnie Ray Coleman was convicted of burglary. He enumerates six alleged errors below. Held:
1. Appellant contends he was prejudiced by the trial court’s
Thus, the record shows that the trial court did not specifically refuse a proper request to permit appellant to cross-examine the witness on the effect her probation status may have on her testimony and that the appellant did not properly object and advise the court that this impeachment was what he wished to achieve.
2. The trial court did not fatally infect his charge to the jury and prejudice appellant’s impeachment rights by giving the charge that the state’s witness did not have a criminal record. In fact, the judge charged: “Now, as has been brought out by the attorneys Ms. Diane Dial [the state’s witness] testified as well as other witnesses, and I charge you now what it is to impeach a witness.... That a witness is unworthy of belief and his or her testimony thus discredited may be established by one of three ways: First, disproving the facts testified by him or her. Second, by proof of contradictory statements previously made by him or her on matters relevant to his or her testimony in the case, or three, proof of his or [her] conviction of a felony.
“Now, Defendant’s Exhibit 1 is evidence of a conviction of a felony; however, as you will see, it says it’s to be treated as a first offender, which simply means that if Ms. Dial serves out her time on probation, has no further offenses, then she would not have a criminal record and there would be no evidence of a conviction.”
3. Appellant was not entitled to a charge on the lesser included offense of theft by taking, as the evidence showed conclusively that nothing had been taken in the burglary. Thus, there was no offense of theft by taking in this case. If the facts show there was no such offense committed, the defendant is not entitled to a charge of it and is not entitled to the advantage of such charge to escape conviction of a greater crime. The offense in this case was burglary.
4. Neither was appellant entitled to a jury charge on the offense of criminal attempt to commit theft by taking as a felony and as a misdemeanor. It is true that theft by taking (OCGA § 16-8-2 (Code Ann. § 26-1802)) may in some circumstances be a lesser included offense of burglary, Breland v. Smith, 247 Ga. 690 (279 SE2d 204); but it does not follow that where a burglary (entry with intent to commit a theft; OCGA § 16-7-1 (Code Ann. § 26-1601)) was committed but nothing was actually taken, the attempt to commit theft by taking will be a lesser included offense which the defendant is entitled to have charged.
To show an attempt to commit theft by taking in this case, it first had to be shown that the appellant was in the victims’ house; and the evidence is undisputed that the intruder was in the house without authority. Thus, the offense of “attempt to commit theft by taking,” could only be proved in this case by proof of the greater, consummated offense of burglary. An attempt to commit a crime may be found as a lesser included offense even though the greater crime was actually committed (OCGA § 16-4-2 (Code Ann. § 26-1004)); but where an attempt to commit one crime can only be proved by proof of another, greater, consummated crime, the attempt of the former cannot possibly be “included” or “lesser” than the latter. The appellant was not entitled to a charge or verdict of attempt to commit theft by taking when that offense could only be proved by showing that he entered the victims’ house with intent to commit a theft, i.e.,
6. The evidence in the case is sufficient to authorize a rational trier of fact to find reasonably that a burglary had been committed and to find proof of appellant’s guilt beyond a reasonable doubt. Turner v. State, 151 Ga. App. 169, 170 (259 SE2d 171). Appellant contends that “it is debatable as to whether or not there was actually a [burglary],” but the jury obviously did debate this question and was authorized to find beyond a reasonable doubt that a burglary had taken place. The state’s case was not purely circumstantial and was aided by three admissions of guilt made by the appellant. The credibility of witnesses is always a question of fact for the jury; the jury resolved this question against the appellant both as to the defense of alibi and as to the confessional statements appellant made to others. Appellant’s enumeration on the general grounds is without merit. Turner, supra.
Judgment affirmed.