¶1dissenting.
¶2I dissent from the principle enunciated in Division 3 of the majority opinion. The majority has, in my view, under the doctrine of "induced error” repudiated the intention of the General Assembly, as interpreted by this court as late as 1975, and has, without reference to it, effectively overruled a 1975 decision of this court.
¶3The majority opinion says: "Where counsel has an undisclosed defense theory, introduces evidence to support the same at the trial, the trial court fails to charge on this defense but nevertheless asks counsel if he has left out anything and counsel replies in the negative, we hold that the error was induced by counsel and will not be a ground for a new trial. Error can be induced by a negative answer as well as by an affirmative one.”
¶4I take issue with this ruling on two grounds. First, if evidence has been introduced that supports a defense for the accused, the defense theory is certainly not "undisclosed.” It is plainly apparent, because there is *527evidence before the jury that supports such defense.
¶5Second, this ruling by the majority in the instant case rather surreptitiously overrules, for all practical purposes, the decision of this court in Sims v. State, 234 Ga. 177 (214 SE2d 902) (1975) where this court said in Division 2 (a): "(a) Under the Appellate Practice Act of 1965 as amended (Ga. L. 1965, p. 18; 1968, pp. 1072, 1078), an appellant in a criminal case may appeal and enumerate error on an erroneous charge or on erroneous failure to charge without first raising the issue in the trial court. Spear v. State, 230 Ga. 74 (195 SE2d 397). The benefits of this rule are not deemed waived by defendant even where his counsel states to the trial judge that he has no objection to the charge of the court.” Pp. 178, 179.
¶6I would adhere to the rule stated in Simsuntil that rule is changed by the amendment of the Appellate Practice Act by the General Assembly. Further, as I read the transcript and record in this case, there was no "induced error.”
¶7I respectfully dissent.
¶8I am authorized to state that Justice Ingram concurs in this dissent.