dissenting.
I respectfully dissent from the majority opinion because I find no merit to the appellant’s contention that the trial court erred in refusing to give his requested charge based on OCGA § 16-8-10.
1. First, the requested charge is not in the record or transcript and this court cannot assure itself of the exact wording. The burden is on an appellant to establish error which has harmed him, and this cannot be done by assertions in the brief. York v. Miller, 168 Ga. App. 849, 850 (310 SE2d 577); Holzmeister v. State, 156 Ga. App. 94 (1) (274 SE2d 109). “ * “A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.” ’ ” Berman v. Berman, 253 Ga. 298, 299 (319 SE2d 846). Further, the request must be “ ‘ “legal . . . and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” ’ ” Fowler v. Gorrell, 148 Ga. App. 573, 576 (251 SE2d 819); accord Kessel v. State, 236 Ga. 373, 374 (223 SE2d 811). Without the verbatim request to charge before us, this court cannot assure itself the request perfectly stated the law, is not argumentative, and is precisely adjusted to the facts and the law of this case. I will not presume reversible error from a silent record.
2. Secondly, I find no reversible error in the refusal of the trial court to give the requested charge because this alleged defense was not established as a matter of law. If the request is not “precisely adjusted to some principle [of law] involved in the case” it is not error to refuse the request. Fowler, supra; Kessel, supra. For this affirmative defense to be “apt” in the present case, it must have a basis in fact, and be permitted by law. Stated conversely, regardless of whether the evidence establishes a claimed fact, if such fact is not recognized by the law as a defense, there is no error in refusing to give the charge. For example, it is not error to refuse a requested charge on an asserted defense of causing the death of another “by the commission of a lawful act in an unlawful manner” when the instrument used is a “deadly weapon,” as a matter of law, even though the established facts support the claim. Ward v. State, 252 Ga. 85 (1) (311 SE2d 449); Saylors v. State, 251 Ga. 735 (2) (309 SE2d 796); Richard*862son v. State, 250 Ga. 506 (3) (299 SE2d 715).
Williams claimed he picked up “cans and boxes.” He admitted being parked in front of the loading dock and saw this “box sitting over there . . . the door as you go in the shop.” As to the box’s relative position to a dumpster, Williams was asked by his counsel: “Q. In other words, there is a side door and the dumpsters are around the corner. . . . A. I said, ‘There is a box.’ So I backed up . . .1 looked at the box. And I went to do that right there, and I said, ‘Something in here.’ I said, ‘It is heavy.’ ” Williams testified that at this point he was apprehended. Two security guards testified that they waited until Williams loaded the stolen merchandise on his truck. The majority states that Williams was “just ‘getting empty boxes.’ ” In other words, Williams asserted no “honest claim of right” to the stolen merchandise, only the box. Yet, the stolen merchandise in the “empty box[ ]” weighed 50 to 60 pounds and appellant was aware of “something in” the box, and that it was “heavy.” However, the appellant was not charged with the larceny of the box, but of the merchandise in the box, and according to the record and the majority, appellant has asserted no “honest claim of right” to the merchandise, only that he had no “intention to steal anything from” the store. Hence, it should not be error to refuse to charge on a collateral issue (i.e., larceny of the box), which was not charged as a crime.
From the above, it is seen that Williams’ asserted claim of right was only to the box, and not to the merchandise in the box. There is no evidence in the record, and no basis in law for an “honest claim of right” to the merchandise of another (the department store) which is located on the property of the true owner (the loading dock). The test for an “honest claim of right” is set forth in Moyers v. State, 186 Ga. 446, 449-450 (197 SE 846): “ ‘If one in good faith takes the property of another, believing it to be his own or that he has a [legal] right to its possession, though his claim is unfounded, he is not guilty of larceny, because there is no felonious intent to deprive another of his property.’. . . ‘The claim under which the party acts must be a claim of ownership or right to possession of the specific thing. . . .” (Emphasis supplied.) Here, the appellant’s claim of right was not to “the specific thing,” the merchandise, and because appellant was not charged with larceny of the box, his charge related to the merchandise and was not applicable, either in fact or law. See Breland v. State, 135 Ga. App. 478, 481 (3) (218 SE2d 153). “There is a distinction between ‘claim of right’ and ‘lack of intent.’ [Cit.] . . . [T]he defendant did not contend at the trial that the property was not stolen, but only that he was unaware of the fact.” Williams v. State, 142 Ga. App. 764, 769 (236 SE2d 893).
Accordingly, as appellant’s defense was not an honest claim of right to the merchandise, but a claim of right to the box, and he has *863not been charged with theft of the box, and no “honest claim of right” was established or asserted by a claimant who went onto the property of another and allegedly took possession of the other’s merchandise, such stranger to the title can have no “honest claim of right” to the merchandise, only that he was without any intent to deprive the true owner of its property. Cf. Mathis v. State, 147 Ga. App. 148, 149 (3) (248 SE2d 212). The trial court properly charged on the specific intent of the taker to deprive the owner of its property which was the sole defense asserted and this was resolved against appellant. White v. State, 163 Ga. App. 518 (295 SE2d 333); Bremer v. State, 148 Ga. App. 461, 467 (3) (251 SE2d 355).
Because the appellant has asserted no “honest claim of right” to possession of the stolen merchandise, but only to the box, he was not entitled to a charge on a claim of right to the merchandise as a matter of fact. Because appellant has no basis in law for an “honest claim of right” to the property of the department store, following his entry onto the property of the store, even if there was a factual predicate for the claim, it is not recognizable in law and the refusal to charge was correct as a matter of law.
3. Of interest is the claim of the appellant that he did not attempt to steal the merchandise, in effect, he just picked the box up, put it down, and there was no asportation of the stolen merchandise, thus no offense. Assertion of an honest claim of right to property is an affirmative defense. Mathis, supra at 149. It is general law in this state that one cannot assert an affirmative defense if he denies commission of the offense. See Gregoroff v. State, 248 Ga. 667, 669-670 (285 SE2d 537); Griffin v. State, supra at 263. The basic reasoning is that an affirmative defense is in the nature of confession and avoidance — I took the property, but I took it because I have an honest claim of right to it. Gregoroff, supra at 670. Appellant claims the best of both sides, i.e., I didn’t take it, and if I did take it, I had a right to it (the box) because I am a scavenger, and I have the right to go onto the property of anyone and take any box. Compare Mathews v. United States, 485 U. S._(108 SC 883, 99 LE2d 54).
I would affirm the judgment of the trial court. I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray and Judge Pope join in this dissent.