Barrett v. State , 138 Ga. App. 26 ( 1976 )

138 Ga. App. 26 (1976) 225 S.E.2d 483

BARRETT
v.
THE STATE.

51805.

Court of Appeals of Georgia.

Submitted February 2, 1976. Decided March 8, 1976.

H. J. Thomas, Jr., for appellant.

William F. Lee, Jr., District Attorney, Robert H. Sullivan, Assistant District Attorney, for appellee.

BELL, Chief Judge.

The defendant was convicted of burglarizing a warehouse. Held:

1. The trial court did not charge the jury on the right of the defendant not to testify. Code Ann. § 38-415 provides in part: "... The failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure:..." The charge as urged by the defendant would have violated the statute and would have interjected error. Linder v. State, 132 Ga. App. 624, 625 (208 SE2d 630). There was no error in failing to so charge.

2. Defendant's enumeration that the court erred in denying a motion for a new trial predicated on an affidavit by a prosecution witness stating that she lied under oath is without merit. A post trial declaration by a state's witness that his former testimony was false is not cause for a new trial. Richey v. State, 132 Ga. App. 188 (207 SE2d 672).

3. There is evidence to show that defendant without authority entered a commercial building with intent to commit theft. The conviction was authorized.

Judgment affirmed. Clark and Stolz, JJ., concur.