Opinion
56507.
SUBMITTED SEPTEMBER 19, 1978.
DECIDED OCTOBER 12, 1978.
Armed robbery. Lowndes Superior Court. Before Judge Elliott.
Blackburn, Bright Dodd, Roger J. Dodd, for appellant.
H. Lamar Cole, District Attorney, Alden W. Snead, Assistant District Attorney, for appellee.
Defendant Hudson and his co-defendant Brown were jointly indicted and convicted of armed robbery. Defendant Hudson has appealed. Held:
1. Defendant's motion for severance was denied. It was claimed in the motion that Brown's defense "may be conflicting and may implicate the other co-defendant [Hudson]." The grant or denial of a motion to sever is a matter that lies within the discretion of the trial court. Baker v. State, 238 Ga. 389 ( 233 S.E.2d 347). The burden is on the defendant requesting a severance to make a clear showing he would be prejudiced if the severance should not be granted. Cain v. State, 235 Ga. 128 ( 218 S.E.2d 856). The positions taken at the trial by both defendants were not antagonistic. Brown testified that he alone committed the crime; and that defendant was not present and had no participation in the robbery. This testimony supported defendant's claim of alibi. No prejudice and likewise no abuse of discretion has been shown.
2. The court's charge to the jury on out-of-court statements and confessions and on alibi were correct statements of law and were not erroneous for the reasons advocated.
3. The evidence authorized the conviction. Therefore it was not error to deny the motion for directed verdict of acquittal.
Judgment affirmed. Shulman and Birdsong, JJ., concur.