dissenting.
In view of the fact that Brown, not Ayear, is on trial, and that Brown’s knowledge of Ayear’s activities is a seriously controverted issue, it was error in my opinion to refuse a jury instruction which would have permitted the jury to consider whether there were in fact exigent circumstances justifying the warrantless intrusion into the defendant’s home. Further, the house was at the time in question completely surrounded by police officers, and it is not seriously contended that Ayear could have escaped while a search warrant was being obtained.
This was, in my opinion, a denial of the defendant’s fair trial rights which washed out his mistake of fact defense by refusing a charge on this issue. The jury should at the very least have had a right to choose between the state’s testimony that the situation had been explained to Brown, and Brown’s testimony that it had not.
Where there is neither consent nor exigent circumstances, even the routine arrest of a felon a short period of time after the commission of the crime and in his own home is constitutionally unreasonable without a warrant. Thompson v. State, 248 Ga. 343 (285 SE2d 685) (1981).
I respectfully dissent. I am authorized to state that Judge Carley and Judge Sognier concur in this dissent.