McGee v. State

Full title: McGEE v. THE STATE

Court: Court of Appeals of Georgia

Date published: Nov 16, 1979

262 S.E.2d 642 (Ga. Ct. App. 1979)

262 S.E.2d 642

Opinion

58832.

SUBMITTED OCTOBER 30, 1979.

DECIDED NOVEMBER 16, 1979.

Robbery by force. Muscogee Superior Court. Before Judge Smith.

H. Haywood Turner, for appellant.

William J. Smith, District Attorney, Douglas C. Pullen, Assistant District Attorney, for appellee.

BANKE, Judge.

Appellant and a companion were convicted of robbing the night clerk at a convenience store in Columbus. He enumerates as error on appeal the failure of the trial court to charge on theft by taking as a possible lesser included offense, even though no request for such a charge was made. Held:

"The trial judge ... may, of his own volition and in his discretion, charge on a lesser crime of that included in the indictment or accusation. However, his failure to do so, without a written request by the state or the accused, is not error." State v. Stonaker, 236 Ga. 1, 2 ( 222 S.E.2d 354) (1976). Accord, Jackson v. State, 239 Ga. 40 ( 235 S.E.2d 477) (1977). The enumeration of error is without merit.

Judgment affirmed. McMurray, P. J., and Underwood, J., concur.

BANKE, Judge.

SUBMITTED OCTOBER 30, 1979 — DECIDED NOVEMBER 16, 1979.