KITCHENS v. THE STATE., 209 Ga. 913, 76 S.E.2.d 618 (1953)
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Summary
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
Summary
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
Text
L. E. Kitchens was convicted of robbery by force under an indictment charging that he did, on September 27, 1952, in Bibb County, "unlawfully and with force and arms, wrongfully, fraudulently and violently and by force and intimidation take from the person of Willie Gowder, without his consent and with an intent to steal the same, $32.00 in lawful money of the United States, personal goods of the said Willie Gowder, contrary to the laws of said State, the good order, peace and dignity thereof." He moved for a new trial on the usual general grounds and a special ground, which alleged that the judge erred on the trial in charging the law of alibi since an instruction on that subject of the law, though abstractly correct as given, was unauthorized by his statement to the jury or the evidence. His motion, as amended, was overruled and the exception is to that judgment. Held:
1. The verdict is amply supported by evidence and has the approval of the trial judge.; This being true, the general grounds of the motion for new trial are not meritorious.
2. The special ground of the motion for new trial is also without merit. Alibi, as a defense, involves the impossibility of the defendant's presence at the scene of the offense at the time of its commission (Code, 122); and, as a matter of pleading, the defense of alibi is covered by the general issue of not guilty. Westbrook v. State,
3. The judgment complained of is not erroneous for any reason assigned.
Edward F. Taylor, for plaintiff in error.
1953
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