Berry v. State

Quillian, Chief Judge.

The defendant appeals his conviction for burglary in the companion case to Armstrong v. State, 160 Ga. App. 237, and Armstrong v. State, 160 Ga. App. 239. Held:

1. Assuming the evidence authorized a charge on Code § 38-420 the mere failure to charge such subject, in the absence of a timely written request, was not error. Cantrell v. State, 141 Ga. 98 (2) (80 SE 649); White v. State, 141 Ga. 526 (4) (81 SE 440); Williams v. State, 210 Ga. 207 (2) (78 SE2d 521); and Harvey v. State, 216 Ga. 174, 176 (2) (115 SE2d 345).

2. The evidence was sufficient for a rational jury to find the defendant guilty beyond a reasonable doubt.

3. “The rule is that counsel may argue his inferences and conclusions from the evidence, though they may be far-fetched or ill founded or flights of fancy; what he may not do is to inject by way of argument facts not in evidence.” Ingram v. State, 97 Ga. App. 468, 490 (103 SE2d 666). See Montos v. State, 212 Ga. 764, 768 (95 SE2d 792).

In this case the prosecuting attorney objected to counsel for the defendant’s argument as to the absence of fingerprints on the ground that there was no evidence “that fingerprints would have been there.” The trial judge stated to defense counsel, “Let’s stay within the evidence” and then instructed the jurors: “... you’ll base your verdict on your recollection of the evidence submitted during the trial. If either Attorney makes a Statement inconsistent with your recollection of what the evidence is, or a statement as to matters not in evidence you would disregard that statement.”

We find nonmeritorious defendant’s argument that his counsel was prevented from arguing inferences and deductions from the evidence.

4. The remaining enumeration of error is controlled adversely to defendant’s contentions by our holding in Armstrong v. State, 160 Ga. App. 237.

Judgment affirmed.

McMurray, P. J, and Pope, J., concur.