164 Ga. App. 429 | Ga. Ct. App. | 1982
Defendant was indicted, tried and convicted of burglary. He was sentenced to ten years, two years to serve in confinement with eight years on probation, and fined $1,000. On this appeal he enumerates four allegations of error, all relating to the jury charge. Held:
1. Defendant’s first contention is that the trial court erred in refusing his request to charge on criminal trespass as a lesser included offense. Criminal trespass (Code Ann. § 26-1503 (Ga. L. 1968, pp. 1249, 1285; 1969, pp. 857, 859; 1979, p. 764)) is indeed a lesser included offense of burglary. Williamson v. State, 134 Ga. App. 583 (215 SE2d 518); Huffman v. State, 153 Ga. App. 203 (2) (265 SE2d 603). If the evidence warrants a requested charge on a lesser included offense, it is reversible error to refuse it. State v. Stonaker, 236 Ga. 1, 2 (Rule 3) (222 SE2d 354), cert. den. 429 U. S. 833; see Beck v. Alabama, 447 U. S. 625, 636 n. 12 (100 SC 2382, 65 LE2d 392).
We find that the evidence did not warrant the giving of the
Because the defense strategy was that of attacking the state’s identification evidence and then presenting an alibi defense, there was no evidence mitigating the criminal intent element of burglary (“intent to commit a felony or theft therein”) to that of criminal trespass (“for an unlawful purpose”). Code Ann. § 26-1601 (Ga. L. 1968, pp. 1249, 1287; 1977, p. 895; 1978, p. 236; 1980, p. 770); Code Ann. § 26-1503 (b) (1) (Ga. L. 1968, pp. 1249,1285; 1969, pp. 857,859; 1979, p. 764). The state’s evidence showed that the person discovered in the building had no authority to be there, the lock on the rear door had been forced, desk drawers had been opened and the person took flight upon being discovered. This evidence established (or at least authorized the finding of) criminal intent for burglary. Thus, even if there had been some evidence authorizing a finding of criminal trespass, the lesser offense merged with the greater offense when the state established the intent to steal. Varnes v. State, 159 Ga. App. 452, 453 (2)(a) (283 SE2d 673); Deese v. State, 137 Ga. App. 476, supra.
2. Defendant next challenges part of the court’s charge on specific intent. After giving a pattern instruction on specific intent, the court added, “That the Defendant did not accomplish his apparent purpose, would not prevent a finding of his guilt of the offense of burglary.” While this certainly looks bad in isolation, we must look to the charge to the jury as a whole when considering fragments. See Thurmond v. State, 161 Ga. App. 602, 605 (2) (288 SE2d 780); Ousley v. State, 158 Ga. App. 186 (2) (279 SE2d 490). In its proper context, it can be seen that the sentence was meant (albeit awkwardly) to instruct the jury that no other crime need have been completed inside the building, only intended. We find that this awkward sentence, including the questionable use of the word “apparent,” could not have so tainted the otherwise correct charge as to confuse the jury. See Leonard v. State, 146 Ga. App. 439, 443-444 (5) (246 SE2d 450); Veasley v. State, 142 Ga. App. 863, 864 (3) (b), 865-867 (6) (237 SE2d 464). See also Siegel v. State, 206 Ga. 252 (2) (56 SE2d 512).
3. Along with this contention, defendant asserts that the trial
We find the differences between these two charges to be insignificant semantics. Neither charge offends Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39).
4. Defendant’s final contention is that the court erred in its charge regarding alibi. The charge given paraphrased the charge approved in Patterson v. State, 233 Ga. 724, 730 n.2 (7) (213 SE2d 612). Defendant, however, claims that the following error in this portion of the charge is cause for reversal: “... if... the jury should entertain a reasonable doubt as to the defense — as to the guilt of the accused, then they should acquit.” We decline to assign reversible error to this slip of the tongue, which was immediately corrected, particularly when as here the remainder of the charge so clearly stated the correct principles that any rational juror would have noted it as merely a mistake even absent a correction. See Sirmans v. State, 158 Ga. App. 75 (1) (276 SE2d 58); Galloway v. State, 157 Ga. App. 85, 86 (3) (276 SE2d 135); Baker v. State, 137 Ga. App. 33, 35 (4) (222 SE2d 865); see also Siegel v. State, 206 Ga. 252, supra.
Judgment affirmed.