Bird v. StateBird v. State
- Reporters:
- , ,
- Before:
- Gardner
1. Thе defendant was convicted on an indictment containing two counts: Count 1 is based on the operation of an automobile on a public highway while under the influence of intoxicating liquors. Count 2 is based on’ Code (Ann. Supp.) § 68-9919. See Ga. L. 1939, pp. 295, 296; 1953, pp. 376, 377. The jury returned a verdict of guilty against the defendant on each count. He filed а motion for new trial on the general grounds and thereafter added two special grounds. The general grounds are not argued and are, therefore, considered abandoned.
2. (a) Special ground 1 complains because the court failed to charge substantially the law that the defendant entered upon thе trial with the presumption of innocence in his favor, and that the presumption of innocence remаined with him throughout the trial until and unless the State submitted evidence sufficient to convince the minds of the jury of the defеndant’s guilt to a moral and reasonable certainty and beyond a reasonable doubt. In this connection, the only charge of the court regarding this question is: “The burden, gentlemen, is imposed on the State to make good the State’s contention of guilt in either or both counts in the accusation. . . The degree of conviсtion or persuasion, or proof, required of the State in producing a conviction of crime at thе hands of a jury, is required to be to a moral and reasonable certainty, and beyond a reasonable doubt. Now, what is meant by a reasonable doubt? What is required of the State? A reasonable doubt is not a vague or a shadowy or a captious, thin doubt, not just any kind of a doubt, but as the word itself implies, a reasonable doubt, one which you could assign a reason in the experience of fair-minded men. . . If you find that the State has carried the burden by convincing you as fair and reasonable men to a moral and reasonable cеrtainty and beyond a reasonable doubt that the defendant is guilty of either one or both of (he charges сontained in the accusation, you should find a verdict of guilty.”
This did not meet the substantive requirements of the law in regаrd to *38the presumption of innocence of every defendant. See Kelly v. State, 204 Ga. 239 (49 S. E. 2d 489) as foll.ows: “In all criminal cases; including homicide cases, tried under a plea of not guilty, the presumрtion of innocence is a fundamental doctrine of American criminal jurisprudence. This presumption rеmains with the defendant throughout the progress of the trial, unless and until it be overcome in the minds of the jury from what is adduсed on the stand, under the rules of law as given by the court. When the presumption of innocence may in fact be overcome in their minds, and the burden shifted, is but a rule of evidence. Even in the plainest of cases, it is for thе jury to determine as a matter of fact under instructions from the court, and not for the court to determine аs a matter of law, whether such original presumption of innocence has or has not been overthrown. . . Thus, while it is the function of the judge to submit to the jury appropriate instructions on the question as to whether in their minds thе presumption of innocence has or has not been removed, it is still true that, oven in the plainest of cases, he can no more withhold or withdraw this basic safeguard with which all persons accused of crime are clothed than he could in a flagrant case direct a verdict of guilty. That, of course, he can nоt do since the jury alone has the power to condemn. Accordingly, the rulings by the Court of Appeals (Reddick v. State, 11 Ga. App. 150 (4), 74 S. E. 901; Butts v. State, 13 Ga. App. 274 (1), 79 S. E. 87; Thurman v. State, 14 Ga. App. 543 (6), 81 S. E. 796), to the effect that in criminal cases it is error to fail to charge on the presumption of innocencе, with which one accused of crime enters upon his trial, embody a sound principle of law, and this is true irrespective of what the evidence or lack of evidence may be, and even though the jury, under instructions of law from the court, should unquestionably find that such original presumption of innocence had in fact been overcome.”
In Thurman v. State, 14 Ga. App. 543 (6) (81 S. E. 796), cited in the Kelly case, this court said: “It is well settled that the failure of the trial judge to charge the jury in a criminаl case to the effect that the defendant entered upon his trial with the presumption of innocenсe in his favor, and that this presumption of innocence remains with him until overcome by proof satisfying the jury of his guilt beyond a reasonable doubt, is reversible error. Coffin v. U. S., 156 U. S. 432 (15 Sup. Ct. 394, 39 L. ed. 481); Reddick v. State, 11 Ga. App. 150 (74 S. E. 901); Butts v. State, 13 Ga. App. 274 (79 S. E. 87).” This assignment of error is meritorious and requires the grant of a new trial.
(6) With reference to count 2, the court charged: “It’s also a violation of the law of this Slate fоr any person to operate a motor vehicle in any manner, any such manner, as would bo dangerоus to the safety of persons or property. Now gentlemen, that’s the law as the Court understands it.” This is an erronеous charge of the law as applied to count 2 of the accusation. The statutory provisions аre, among other things: “It is a violation of the law of this State for any person to drive a motor vehicle uрon a street or highway in this State in such a manner as to be in wilful or wanton disregard of the safety of persons оr property.” What the trial court charged and the provisions of the statute are separate аnd distinct propositions, as one may observe by reading *39the excerpt from the charge in relation tо the statutory provisions as to this law. This assignment of error is meritorious and requires a reversal of the lower court.
The court erred in not sustaining the motion for new trial as to each of the special grounds.
Judgment reversed.
Townsend and Carlisle, JJ., concur.