Huff v. State , 113 Ga. App. 257 ( 1966 )

Pannell, Judge,

concurring specially. In my opinion, it is not necessary to determine whether or not the defendant’s statement presented a defense of justifiable homicide under Code § 26-1013. Assuming, without deciding, that such defense was set up by her statement, it was set up by her statement alone and not by any other evidence or testimony in the case. It is not error for the court to fail to charge on the theory of defense raised solely by defendant’s statement, in the absence of a proper written request. Hart v. State, 28 Ga. App. 258 (1) (110 SE 745); Saunders v. State, 43 Ga. App. 59 (7) (158 SE 433); Glover v. State, 46 Ga. App. 663 (1) (168 SE 788); Brown v. State, 150 Ga. 756 (1) (105 SE289). Under these circumstances, the failure to charge said Code section without request is not reversible error. See, also, the cases cited in the majority opinion, to wit: Jackson v. State, 192 Ga. 373, 374 (15 SE2d 484); Smith v. State, 117 Ga. 259 (43 SE 703); Prince v. State, 180 Ga. 797 (5) (180 SE 768); Bolton v. State, 107 Ga. App. 883 (2) (131 SE2d 862). To the extent indicated above I agree with the majority opinion in Division 1, and to that extent only. The case of Downs v. State, 175 Ga. 439 (165 SE 112), cited by Judge Nichols in his dissent, was a case where the testimony of witnesses and other evidence, aside from the defendant’s statement, created the issue of defense of habitation under Code § 26-1013, and it was held to be error to fail to give such section in charge even in the absence of a request, and such case was not authority for the ruling made in Frazier v. State, 88 Ga. App. 82 (76 SE2d 70), also cited by Judge Nichols.

I concur in Division 3 of the opinion, that the request to charge was not a perfect request because it was prefaced with the language “in this respect.” I do not concur in other reasons given therein.

I concur in the other divisions of the opinion.

I am authorized to say that Judge Deen joins in this special concurrence.