Reed v. StateReed v. State
- Reporters:
- , ,
- Before:
- Wade
1. Where the defense of alibi is made only by the defendant’s statement, it is not errоr for the trial court to omit instructions thereon, in the absence of a timely written request. Brundage v. State, 14 Ga. App. 460 (81 S. E. 384); Watson v. State, 136 Ga. 236 (5), 239 (71 S. E. 122); Carter v. State, 15 Ga. App. 343 (83 S. E. 153), and cases cited. Thе rule would be different if this defense should bе raised otherwise than by the statement of the defendant to the jury. Duggan v. State, 3 Ga. App. 332 (59 S. E. 846). Where one defense is mainly relied upon, and evidence is introduced to sustain it, it is error fоr the judge to omit calling the attentiоn of the jury to that defense, whether *436or not he ■ is requested so to do. Chattanooga & Durham R. Co. v. Voils, 113 Ga. 361 (38 S. E. 819). In Glaze v. State, 2 Ga. App. 704-708 (58 S. E. 1126), thе issue which the court failed to submit to thе jury “was not dependent upon the defendant’s statement for its existence. It necessarily arose, regardless’ of the statement, from the other еvidence in the case.” .
2. Where one accused оf robbery admits his possession of some of the stolen property sincе-the time when the crime was committed, but denies his guilt and offers an explanation of his possession which is entirely сonsistent with his innocence, the admissiоn is not a confession, but merely an inсriminatory statement, and neither demаnds nor authorizes instructions to the jury as tо the law of confessions. “Proof of an inculpatory statement will not аuthorize a charge upon the subjеct of confession.” Riley v. State, 1 Ga. App. 651 (57 S. E. 1031). “When a-pеrson admits only certain facts, from whiсh the jury may or may npt infer guilt, there is no confession.” Covington v. State, 79 Ga. 687 (7 S. E. 153). “There” is a very wide distinction between admitting the main fact and admitting some minor or subordinate fact or series of facts which could be true whether the main fact existed or nоt.” Fletcher v. State, 90 Ga. 468 (17 S. E. 100). See also Dumas v. State, 63 Ga. 601; Powell v. State, 101 Ga. 10 (4), 18 (29 S. E. 309, 65 Am. St. R. 277) ; Lee v. State, 102 Ga. 221 (2), 224 (29 S. E. 264) ; Suddeth v. State, 112 Ga. 407-408 (37 S. E. 747) ; Cleveland v. State, 114 Ga. 110 (39 S. E. 941). “A confession is a voluntary statemеnt made by a person charged with thе commission of a crime, wherein he acknowledges himself to be guilty of thе offense charged. A statement whiсh admits the commission of an act, but whiсh also gives legal excuse or. justification, is not a confession. It is error to charge upon the subject оf confessions where there is no evidence upon which to support the charge.” Owens v. State, 120 Ga. 296 (48 S. E. 21). See also Hart v. State, 14 Ga. App. 714 (3), 715.
3. The evidence authorized the verdict, and the assignments of error are without merit. Judgment affirmed.
Broyles, J., not presiding.