358 S.E.2d 623 | Ga. Ct. App. | 1987
Freeman appeals his convictions of driving under the influence of alcohol and speeding. Held:
1. Appellant asserts that the trial court’s charge on the issue of
In Francis v. Franklin, supra, the Supreme Court denounced as violative of due process, language which a reasonable juror could have understood as creating a mandatory presumption which shifted to the defendant the burden of persuasion on the element of intent. The jury in Francis v. Franklin was instructed that, although such presumptions are rebuttable, “ ‘acts of a person of sound mind and discretion are presumed to be the product of the person’s will,’ and . . . [such] person ‘is presumed to intend the natural and probable consequences of his acts.’ ” Id. 85 LE2d at 354. (Emphasis in original.) In contrast, the language of the present charge was couched in terms of permissible inferences. The jurors were told merely that they were entitled to make certain presumptions or draw certain inferences from the evidence, not that the law required them to do so. Compare Sandstrom v. Montana, 442 U. S. 510, 515 (99 SC 2450, 61 LE2d 39) (1979). Although this court has specifically criticized any use of the word “presumed” in such a jury instruction (see Williams v. State, 180 Ga. App. 893, 894 (350 SE2d 768) (1986)), we nevertheless, conclude that the present charge, being couched entirely in permissive rather than mandatory language, complied with the requirements of Francis v. Franklin, supra, and was not violative of- the Due Process Clause. “A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.” Id. at 353-354.
2. Appellant further contends that the trial court improperly commented on the evidence when it charged that “a legal presumption of intoxication exists if you find the chemical analysis shows defendant’s breath, urine, or blood contained .11 percent of alcohol.” We disagree.
OCGA § 17-8-57 prohibits the trial judge in a criminal case from expressing or intimating his opinion as to what has or has not been proved. “The statute is violated when the court ‘ “assumes certain things as facts . . . and intimate [s] to the jury what the judge believes the evidence to be.” ’ ” Sweat v. State, 173 Ga. App. 441 (326 SE2d 809) (1985), citing Mitchell v. State, 190 Ga. 571, 572 (3) (9 SE2d 892) (1940). The challenged portion of the jury charge did not inti
Judgment affirmed.