
    6684.
    Moore v. The State.
    Decided November 5, 1915.
    Indictment for robbery; from Chatham superior court — Judge Charlton. May 21, 1915.
    
      Shelby Myrick, for plaintiff in error.
    
      Walter C. Hartridge, solicitor-general, contra.
   Wade, J.

1. The accused was charged with robbery by force and by intimidation; the jury returned a general verdict of guilty. Under the ruling in Harris v. State, 1 Ga. App. 136 (57 S. E. 937), the evidence was sufficient to establish his guilt under both counts; and therefore the exception that the trial judge restricted the jury by his charge to a consideration of robbery by force alone could not properly have been harmful to the defendant under these circumstances.

2. The only evidence which suggests the defense of alibi is confused and uncertain, and fails reasonably to exclude the possibility of the presence of the defendant at the scene of the offense at the time of its commission; and therefore the court did not err, in the absence of a timely written request, in failing to instruct the jury touching the law of alibi. Paulk v. State, 8 Ga. App. 704 (2) (70 S. E. 50); Smith v. State, 6 Ga. App. 577 (65 S. E. 300); Shaw v. State, 10 Ga. App. 776 (74 S. E. 89); Couey v. State, 11 Ga. App. 415 (75 S. E. 445).

3. The court did not err in overruling -the motion for a new trial.

Judgment affirmed.

Russell, O. J., dissents.  