Bowen v. State

128 Ga. App. 577 (1973)

197 S.E.2d 738

BOWEN v. THE STATE.

47921.

Court of Appeals of Georgia.

Submitted February 6, 1973.

Decided March 5, 1973.

Rehearing Denied March 20, 1973.

Merritt & Pruitt, Glyndon C. Pruitt, for appellant.

Bryant Huff, District Attorney, Gary Davis, for appellee.

BELL, Chief Judge.

1. The defendant was observed by an employee of Empressions, Incorporated, a printing firm, on January 19, 1972, at about 10:00 p. m., within the firm's building, having obtained entry by breaking a glass in a door. The defendant proceeded towards the "front office." The employee requested the defendant to halt. The defendant then fled from the building. This witness later identified the defendant at an out of court police lineup. The defendant limited his defense to his testimony that he was not guilty of burglary with intent to commit theft. The jury returned a verdict of guilty. All the elements of burglary with intent to commit theft were shown by the state. The evidence reveals there were valuable effects in the building. The jury was authorized to infer from this that there was an intent to commit theft. Steadman v. State, 81 Ga. 736 (8 SE 420).

2. The trial court failed to charge three requests of the *578 defendant. Two concerned a charge to the effect that the guilt of the defendant must be proved beyond a reasonable doubt; and that suspicion is not evidence and it will not authorize a verdict. The third one stated that "where the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, the justice and humanity of the law compels the acceptance of the theory which is consistent with innocence." There was no error. The first two requests were otherwise adequately covered by the trial court in its charge to the jury. The last one on the two theories principle has no application to this case as the evidence does not present two theories, one of guilt and the other consistent with innocence. The only defense evidence was defendant's sworn testimony in which he merely reiterated his plea of not guilty.

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