Welch v. State , 130 Ga. App. 18 ( 1973 )

On Motion for Rehearing.

Stolz, Judge. Defendant urges that the court has misapplied the law of alibi to the case at bar and relies on the decisions of this court in Holland v. State, 17 Ga. App. 311 (86 SE 739); Cutts v. State, 86 Ga. App. 760 (72 SE2d 565); Jenkins v. State, 96 Ga. App. 86 (99 SE2d 474); Coppage v. State, 113 Ga. App. 482 (148 SE2d 484); Tiller v. State, 118 Ga. App. 590 (164 SE2d 915); and Brown v. State, 122 Ga. App. 470 (177 SE2d 509); and the Supreme Court in Pippins v. State, 224 Ga. 462 (162 SE2d 338). A review of these cases further confirms the court’s decision. In Holland, supra, there was no recital of fact, but the decision does show that the alibi defense was sustained by testimony. The defendant’s unsworn statement is not testimony or evidence. Code Ann. § 38-415; Dixon v. State, 12 Ga. App. 17, 18 (76 SE 794). In Cutts, Jenkins, Tiller, and Brown, supra, witnesses offered sworn testimony, i.e., evidence, showing the impossibility of the defendant’s presence at the scene of the offense at the time of its commission, thus requiring the charge on alibi. In Coppage, supra, the decision merely states the rule of law on alibi which has been recited in the opinion. In Pippins, supra, the Supreme Court held the alibi charge was required by the defendant’s sworn testimony.

The motion for rehearing is denied.

Judgment adhered to.

Eberhardt, P. J., and Pannell, J., concur.