Opinion
64720.
DECIDED OCTOBER 29, 1982. REHEARING DENIED NOVEMBER 17, 1982.
Burglary. Whitfield Superior Court. Before Judge Pannell.
E. Neil Wester III, for appellant.
Stephen A. Williams, District Attorney, Elida B. Steele, Assistant District Attorney, for appellee.
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 S.E.2d 518); Huffman v. State, 153 Ga. App. 203 (2) ( 265 S.E.2d 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 S.E.2d 354), cert. den. 429 U.S. 833; see Beck v. Alabama, 447 U.S. 625, 636 n. 12 (100 SC 2382, 65 L.Ed.2d 392).
We find that the evidence did not warrant the giving of the requested charge in the case sub judice. Defendant steadfastly maintained at trial that he had neither entered nor had even been near the building where the burglary took place. Having denied being there, he was not entitled to a charge to the effect that if the jury disbelieved him they could still come back with a verdict of guilty on the lesser offense, differing only from burglary in criminal intent. Tuggle v. State, 149 Ga. App. 844, 845-846(6) ( 256 S.E.2d 104); Deese v. State, 137 Ga. App. 476, 477 (3) ( 224 S.E.2d 124). See Lundy v. State, 139 Ga. App. 536, 540 (2) ( 228 S.E.2d 717).
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 S.E.2d 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 S.E.2d 780); Ousley v. State, 158 Ga. App. 186 (2) ( 279 S.E.2d 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 S.E.2d 450); Veasley v. State, 142 Ga. App. 863, 864 (3) (b), 865-867 (6) ( 237 S.E.2d 464). See also Siegel v. State, 206 Ga. 252 (2) ( 56 S.E.2d 512).
3. Along with this contention, defendant asserts that the trial court committed reversible error, by creating a mandatory rather than permissive presumption, in the following portion of the charge: "I charge you that every person is presumed [to be] of sound mind and discretion, but that this presumption may be rebutted. I charge you that you may infer that the acts of a person of sound mind and discretion are the product of his will. And, you may infer that a person of sound mind and discretion intends the natural and probable consequences of his act. Now, whether or not you make any such inference is a matter solely within the discretion of you, the jury." (Emphasis supplied.)
This charge paraphrases the charge approved of in Jackson v. State, 157 Ga. App. 580 (2) ( 278 S.E.2d 152): "`The acts of a person of sound mind and discretion are presumed to be the product of a person's will, but the presumption may be rebutted' and `[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his act, but the presumption may be rebutted.'" (Emphasis supplied.) See Huffman v. State, 153 Ga. App. 203, supra. See also Jones v. State, 159 Ga. App. 845, 849 (6) ( 285 S.E.2d 584) and cits; Thaw v. State, 160 Ga. App. 312, 313 (2) ( 287 S.E.2d 243).
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 L.Ed.2d 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 S.E.2d 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 S.E.2d 58); Galloway v. State, 157 Ga. App. 85, 86 (3) ( 276 S.E.2d 135); Baker v. State, 137 Ga. App. 33, 35 (4) ( 222 S.E.2d 865); see also Siegel v. State, 206 Ga. 252, supra.
Judgment affirmed. Banke and Birdsong, JJ., concur.