Opinion
A89A0200.
DECIDED FEBRUARY 21, 1989.
Armed robbery. DeKalb Superior Court. Before Judge Castellani.
William T. Hankins III, for appellant.
Robert E. Wilson, District Attorney, Thomas S. Clegg, Robert M. Coker, Assistant District Attorneys, for appellee.
Defendant Gunn appeals his conviction of the offense of armed robbery. Held:
1. Defendant contends that the trial court erred in failing to instruct the jury that it could consider robbery by intimidation as a lesser included offense of the indicted charge of armed robbery. The evidence was that the victim, the manager of a motel, was robbed by two men armed with a handgun with which they struck the victim across the head. The perpetrators held the gun to the victim's head threatening to shoot in order to elicit from the victim the location of the motel's money. The defendant relied on a mistaken identity defense.
"In the case sub judice, all the evidence proved the greater offense of armed robbery. Consequently, the trial court did not err in failing to charge on the lesser included offense of robbery by intimidation. See Clempson v. State, 144 Ga. App. 625, 626-627 (3) ( 241 S.E.2d 495); Jordan v. State, 239 Ga. 526, 527 (2) ( 238 S.E.2d 69). There is no merit in this complaint." Mallory v. State, 166 Ga. App. 812, 814 (2) ( 305 S.E.2d 656). See Hernandez v. State, 182 Ga. App. 797, 801 (3) ( 357 S.E.2d 131).
2. Defendant contends the trial court erred in failing to instruct the jury as requested, that eyewitness testimony is not conclusive and is a matter of opinion. However, the charge as given adequately covered the principles articulated in defendant's requests to charge. There was no error in failing to charge in the language requested by defendant. Jefferson v. State, 256 Ga. 821, 825 (5) ( 353 S.E.2d 468); Hood v. State, 179 Ga. App. 387, 391 (4) ( 346 S.E.2d 867); Riley v. State, 175 Ga. App. 710, 712 (5) ( 334 S.E.2d 38).
Judgment affirmed. Carley, C. J., and Beasley, J., concur.