Cowart v. State

Supreme Court of Georgia

Cowart v. State

227 S.E.2d 248, 237 Ga. 282, 1976 Ga. LEXIS 1231

Supreme Court of Georgia·Decided June 30, 1976·No. 30777·Published·Cited by 4 cases

Opinions

Jordan, Justice.

Mike Cowart was convicted of criminal attempt to commit statutory rape, and his conviction was affirmed by the Court of Appeals. Cowart v. State, 136 Ga. App. 528 (221 SE2d 649) (1975). We granted certiorari to consider a burden-shifting charge by the trial judge on the appellant’s affirmative defense of abandonment of the effort to commit the crime. Code Ann. § 26-1003 (Ga. L. [283]*2831968, pp. 1249, 1275). The trial judge instructed the jury that this defense must be made to appear by a preponderance of the evidence.

Argued April 12, 1976 Decided June 30, 1976 Rehearing denied July 14, 1976. . John W. Timmons, Jr., Jack H. Affleck, for appellant. Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.

hi State v. Moore, 237 Ga. 269 (1976), this court held that it was not error to give a similar charge on the affirmative defense of coercion, but that such a burden-shifting charge would not be approved in cases tried after the final date of that decision.

Judgment affirmed.

All the Justices concur, except Gunter, Ingram, and Hill, JJ., who dissent.

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Jordan, Justice.

Mike Cowart was convicted of criminal attempt to commit statutory rape, and his conviction was affirmed by the Court of Appeals. Cowart v. State, 136 Ga. App. 528 (221 SE2d 649) (1975). We granted certiorari to consider a burden-shifting charge by the trial judge on the appellant’s affirmative defense of abandonment of the effort to commit the crime. Code Ann. § 26-1003 (Ga. L. [283]*2831968, pp. 1249, 1275). The trial judge instructed the jury that this defense must be made to appear by a preponderance of the evidence.

Argued April 12, 1976 Decided June 30, 1976 Rehearing denied July 14, 1976. . John W. Timmons, Jr., Jack H. Affleck, for appellant. Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.

hi State v. Moore, 237 Ga. 269 (1976), this court held that it was not error to give a similar charge on the affirmative defense of coercion, but that such a burden-shifting charge would not be approved in cases tried after the final date of that decision.

Judgment affirmed.

All the Justices concur, except Gunter, Ingram, and Hill, JJ., who dissent.

Cowart v. State, 227 S.E.2d 248, 237 Ga. 282, 1976 Ga. LEXIS 1231 (Ga. 1976).

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