Booker v. State

Feb 2, 1981

36926

Versions:

Undercofler, Justice.

In these granted certioraris, the Court of Appeals held that under State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976), it was not error for the trial court to fail to charge on the affirmative defense of justification absent a written request. Booker v. State, 156 Ga. App. 40 (1980). Stonaker, supra, is inapposite as it applies only to charges on lesser included offenses. The applicable law is set out in Lavender v. State, 234 Ga. 608 (216 SE2d 855) (1975). If an affirmative defense is raised by the evidence, including the defendants’ own statements, the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request. The affirmative defense, however, need not be specifically charged if the case as a whole is fairly presented to the jury. Lavender v. State, supra. We thus remand to the Court of Appeals to examine whether the charge here meets this test.

Decided February 2, 1981.

Ray C. Norvell, for appellants. Jon C. Peters, Assistant District Attorney, for appellee.

Judgment reversed.

All the Justices concur.