Phillips v. State

142 Ga. App. 581 (1977) 236 S.E.2d 519

PHILLIPS
v.
THE STATE.

53831.

Court of Appeals of Georgia.

Submitted May 9, 1977. Decided May 26, 1977. Rehearing Denied June 20, 1977.

Gilberg, Kraselsky & Owens, Larry B. Owens, for appellant.

William S. Lee, District Attorney, Hobart M. Hind, Assistant District Attorney, for appellee.

QUILLIAN, Presiding Judge.

The defendant appeals his conviction for burglary. Held:

1. The first enumeration of error complains of the failure to charge Code § 38-414 regarding a confession by a joint offender or conspirator. The facts show that a co-conspirator did make a "statement"; however, no such "statement" was introduced into evidence. Instead, the co-conspirator testified as to the defendant's involvement in the criminal enterprise.

Code § 38-414 has no application and need not be charged "in a case in which no confession of a joint offender or conspirator is offered, but where such joint offender or conspirator is sworn and testifies as a witness." Pippin v. State, 205 Ga. 316 (12) (53 SE2d 482). Accord, Brown v. State, 132 Ga. App. 200 (2) (207 SE2d 682).

2. The evidence was sufficient to sustain the verdict. Adkins v. State, 138 Ga. App. 349, 350 (226 SE2d 137), citing Brown v. State, 232 Ga. 838 (209 SE2d 180), and Self v. State, 108 Ga. App. 201 (4) (132 SE2d 548).

3. The defendant urges that the court erred in failing to charge, without request, the definition and types of possession.

The contention is without merit. "``A correct instruction to the jury is not subject to exception for failure, in absence of an appropriate request, to embody an additional definitive or explanatory charge.'" Griffin v. State, 195 Ga. 368, 371, 372 (24 SE2d 399). Accord, Crowe v. State, 37 Ga. App. 828 (4) (142 S.E. 306); Dobbs v. State, 214 Ga. 206 (104 SE2d 121).

Judgment affirmed. Shulman and Banke, JJ., concur.