McGee v. State

262 S.E.2d 642, 152 Ga. App. 391, 1979 Ga. App. LEXIS 2937

Opinion

Banke, Judge.

Appellant and a companion were convicted of robbing the night clerk at a convenience store in Columbus. He enumerates as error on appeal the failure of the trial court to charge on theft by taking as a possible lesser included offense, even though no request for such a charge was made. Held:

"The trial judge... may, of his own volition and in his discretion, charge on a lesser crime of that included in the indictment or accusation. However, his failure to do so, without a written request by the state or the accused, is not error.” State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976). Accord, Jackson v. State, 239 Ga. 40 (235 SE2d 477) (1977). The enumeration of error is without merit.

Judgment affirmed.

McMurray, P. J., and Underwood, J., concur.