Opinion
41639.
ARGUED NOVEMBER 2, 1965.
DECIDED NOVEMBER 12, 1965.
Larceny of automobile. Carroll Superior Court. Before Judge Knight.
Lanier Randall, for appellant.
Wright Lipford, Solicitor General, for appellee.
1. A defendant who is sworn as a witness may testify as to intention in connection with the matter with which he stands charged. In so doing he does not give opinion evidence, but testifies to a substantive fact.
2. Where the facts upon which the State relies for a conviction indicate that one who took the automobile of another and drove it from Carrollton to Atlanta and within a matter of some twelve hours was back in Carrollton with it, driving in the direction of the place where he had taken the car, ostensibly for the purpose of returning it, though the evidence be weak and unsatisfactory, a jury question is raised as to whether the accused had an intent permanently to deprive its owner of the vehicle.
3. Refusal of a request to charge containing matter argumentative in character is not error.
ARGUED NOVEMBER 2, 1965 — DECIDED NOVEMBER 12, 1965.
Ernest Walker Cain, Jr., a student at West Georgia College, finding the automobile of Professor Robert Veitia to be parked on the campus with the keys in it, drove it from Carrollton to Atlanta and returned some twelve hours later. Dr. Veitia missed the car and reported the matter to the police, who kept a lookout for it. When Cain returned to Carrollton the police saw him driving toward the college campus at a normal rate of speed, followed him for five blocks and then stopped him. He made no effort to escape, admitted to the police that he had taken the car when he found it with the keys in it, had driven it to Atlanta and back and he could assign no reason for doing it. He was indicted and convicted of larceny of an automobile. On his trial the defendant testified to the facts, but asserted that he was returning the car to the campus where he had gotten it when the police apprehended him. He knew that the car belonged to Dr. Veitia and had not obtained his permission to use it. The police testified that when they first saw Cain he was going at a normal speed, making no effort at any time to get away, and was on a main street going in the direction of the college.
A history professor at the college and the defendant's roommate testified as to defendant's good character. The defendant testified as a witness and asserted that he had never been in other trouble. While he was on the stand his counsel asked him whether it had been his intention at any time to fail to return the car, but on objection of the solicitor he was not permitted to answer the question. He was also asked what he would have done with the car if he had not been apprehended, and likewise was not permitted to answer that question.
To the overruling of his amended motion for new trial the defendant excepts.
1. The court erred in refusing to permit the defendant to testify as to his intention to return the automobile. Intent at the time of taking permanently to deprive the owner of the property is an essential element of the crime for which the defendant was being tried. Austin v. State, 65 Ga. App. 733 (1) ( 16 S.E.2d 497). The defendant was sworn and testified as a witness in his own behalf. In so doing testimony as to what his intention had been was not opinion evidence, but proof of a substantive fact. Alexander v. State, 118 Ga. 26 ( 44 S.E. 851).
2. The evidence strongly indicates that the defendant intended to return Dr. Veitia's automobile to the place from which it had been taken, and that there was no intent permanently to deprive the owner of it. But, as was held in Johnson v. State, 9 Ga. App. 409 (3) ( 71 S.E. 507), though "[t]he evidence as to the existence of criminal intent is exceedingly weak and unsatisfactory, . . . the intent with which an act is done being peculiarly a question of fact for determination by the jury, this court does not feel authorized to set aside the verdict on that ground." Accord: Towler v. State, 24 Ga. App. 167 (3) ( 100 S.E. 42). Certainly a conviction for using the vehicle without the owner's consent ( Code Ann. § 26-2639) would have been authorized, for he admits that.
3. A written request for a charge was submitted and there is exception to the court's refusal to give it. While the propositions of law contained in the request were correct and applicable and inclusion of them in the charge would have been proper, the request contained material that was argumentative in nature and it was not error to refuse to give it. A request must be in all respects perfect before the court is required to give it. Davis v. State, 153 Ga. 669, 680 (18) ( 113 S.E. 11).
Judgment reversed for the reason stated in Division 1. Nichols, P. J., and Pannell, J., concur.