Bennett v. State

128 Ga. App. 260 (1973)

196 S.E.2d 413

BENNETT v. THE STATE.

47884.

Court of Appeals of Georgia.

Submitted February 5, 1973.

Decided February 21, 1973.

*261 Glenn Zell, for appellant.

Lewis R. Slaton, District Attorney, Carter Goode, Isaac Jenrette, David D. Rawlins, for appellee.

BELL, Chief Judge.

The defendant appeals a conviction of motor vehicle theft. The only issue is whether the trial court erred in not charging the jury on the defense of alibi. The state through its witnesses established that the vehicle was stolen from the owner in Atlanta on December 24, 1971. On January 5, 1972 the defendant was taken into custody in Brantley County, Georgia while in possession of this car. The defendant's mother, a lifelong resident of Atlanta, testified that her son was not "at home" around Christmas time of 1971; that around Christmas time in 1971 she received a telephone call from her son from Jacksonville, Florida; that on Christmas day she received another phone call from her son but she did not testify as to where this call came from; and she testified further as to receiving phone calls from him in Louisiana, Mississippi and Amarillo, Texas. The defendant in his statement gave an explanation of his possession of the car but said nothing about his whereabouts on or about December 24, 1971. While his mother may have had knowledge that the defendant was "not at home around Christmas time," her testimony about the locality from which she received the phone calls is obviously hearsay. Even though this testimony was unobjected to it has no probative value. Neither the competent testimony of his mother nor his unsworn statement excludes the possibility of his presence with respect to the time and place of the offense for which he was indicted. There was no error in not charging alibi. Evans v. State, 124 Ga. App. 723 (185 SE2d 805).

Judgment affirmed. Deen and Quillian, JJ., concur.