Opinion
74374.
DECIDED SEPTEMBER 15, 1987.
Habitual violator, etc. Douglas Superior Court. Before Judge James.
David M. Bowen, Kenneth W. Krontz, for appellant.
Frank C. Winn, District Attorney, John T. Garcia, Assistant District Attorney, for appellee.
Defendant was convicted of driving under the influence of alcohol and of the offense of habitual violator. Defendant now appeals seeking a new trial from his conviction of habitual violator. Held:
In his sole enumeration of error defendant contends the trial court erred in failing to charge the jury, without request, as to the defense of mistake of fact regarding the offense of habitual violator. In this regard, OCGA § 16-3-5 provides that "[a] persons shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission." "We have repeatedly held that failure to give this charge may be reversible where the defense of mistake of fact is the defendant's sole defense, as where the defendant concedes that the factual circumstances perceived by the state to be a criminal act on his part did in fact occur but only under a mistake of fact and therefore without the requisite criminal intent constituting the crime charged. See, e.g., Gray v. State, 158 Ga. App. 582 ( 281 S.E.2d 328); Henderson v. State, 141 Ga. App. 430 ( 233 S.E.2d 505)." Hobgood v. State, 162 Ga. App. 435, 436 ( 291 S.E.2d 570).
In the case sub judice, the trial court did not err in failing to charge the jury, sua sponte, on the defense of mistake of fact. That defense was not the sole defense raised by defendant at trial with regard to the offense of habitual violator as defendant testified that he was not properly served with notice by the Georgia Department of Public Safety of his status as a habitual violator as is required by OCGA § 40-5-58 (b). Consequently, failure to charge in the language of OCGA § 16-3-5, absent a timely request, was not reversible error. Hobgood v. State, 162 Ga. App. 435, supra.
Judgment affirmed. Sognier and Beasley, JJ., concur.