Montgomery v. State

195 S.E.2d 784, 128 Ga. App. 116, 1973 Ga. App. LEXIS 1405

• Court: Court of Appeals of Georgia
• Decided: February 6, 1973
• Docket: 47840
• Status: Published

Opinions

Hall, Presiding Judge.

Defendant appeals from his conviction for burglary and from the denial of his motion for a new trial. Defendant was apprehended at the scene of the burglary. He was identified at the trial by an unimpeached eyewitness (who had known him previously) as the man who was receiving goods handed through a window by an unknown person inside the house.

1. Defendant contends he was denied his right to an individual examination of each juror when the court refused to allow three questions. As all these questions related to the legal presumption of innocence, the questions were not proper. McNeal v. State, 228 Ga. 633 (187 SE2d 271).

2. Defendant contends there was a fatal variance between the allegata and probata in two particulars: that he was charged with entering while the proof showed he was never in the house at all; and that the indictment described the house as the dwelling of a certain woman while the proof showed she did not live there but only occupied it occasionally. The first point is answered by Code Ann. § 26-801 which states that a person who aids and abets is concerned in the commission of a crime and "may be charged with and convicted of commission of the crime” as a party. See also Green v. State, 124 Ga. App. 469 (184 SE2d 194); Hannah v. State, 125 Ga. App. 596 (188 SE2d 401). The second point is also without merit. There is no requirement in the law that a house be continuously occupied in order to be a "dwelling.” It is sufficient that it is occasionally occupied for residential purposes and any such lawful occupant has a superior right as against burglars for the purpose of an indictment. See Houston v. State, 38 Ga. 165.

Argued January 8, 1973 —Decided February 6, 1973. Howard L. Stopeck, for appellant. Ben F. Smith, District Attorney, Roy E. Barnes, for appellee.

3. Defendant contends the court erred in charging the jury on conspiracy when he was not indicted for it and therefore was not prepared to defend on the charge. When the evidence tends to show a conspiracy, a charge upon the subject is not error even if not alleged in the indictment. Bryant v. State, 65 Ga. App. 523 (16 SE2d 241); Banks v. State, 74 Ga. App. 449 (40 SE2d 103).

4. Defendant contends the court erred in giving a standard charge on resolving conflicting testimony when there was none. He contends this unauthorized charge drew attention to, and was therefore prohibited comment upon, his failure to testify. We cannot agree with this logic. Nothing the court said could possibly have highlighted or diminished the patently obvious fact that the defense put on no case at all — not even an unsworn statement from the defendant simply denying his guilt. The charge on conflicting evidence, while unauthorized, was not harmful to the defendant. This is one of those rare criminal cases in which the evidence demands the verdict and the doctrine of harmless error may be applied. Hall v. State, 8 Ga. App. 747 (70 SE 211).

5. All defendant’s other enumerations of error are without merit.

Judgment affirmed.

Clark, J., concurs. Evans, J., concurs specially.