Truitt v. State

Full title: TRUITT v. THE STATE

Court: Court of Appeals of Georgia

Date published: Apr 22, 1981

280 S.E.2d 384 (Ga. Ct. App. 1981)

280 S.E.2d 384

Opinion

61605.

DECIDED APRIL 22, 1981.

Involuntary manslaughter. Heard Superior Court. Before Judge Smith.

J. J. Anthony, for appellant.

Arthur E. Mallory III, District Attorney, Marc E. Acree, Assistant District Attorney, for appellee.

SHULMAN, Presiding Judge.

Defendant was convicted of involuntary manslaughter in the commission of an unlawful act (simple battery). See Code Ann. § 26-1103 (a). We affirm.

Defendant contends that the trial court's failure or refusal to charge Code Ann. § 26-1103 (b) was error. Although we agree with appellant's assertion that had such a request been properly made the evidence authorized a charge on § 26-1103 (b), we cannot agree that, absent such a request, the failure to charge was error.

Appellant admits that his request to charge was not timely inasmuch as it was not filed until after final argument. See Code Ann. § 70-207 (b), requiring that requests to charge be made "at the close of the evidence or at such earlier time during the trial as the court reasonably directs." That being so, the trial court's failure to charge Code Ann. § 26-1103 (b), a lesser included offense of subsection (a) (see Maloof v. State, 139 Ga. App. 787 ( 229 S.E.2d 560)), does not present grounds for reversal. See Bouttry v. State, 242 Ga. 60 ( 247 S.E.2d 859).

Judgment affirmed. Birdsong and Sognier, JJ., concur.

DECIDED APRIL 22, 1981.