Denton v. State

Court of Appeals of Georgia

Denton v. State

268 S.E.2d 725, 154 Ga. App. 427, 1980 Ga. App. LEXIS 2209

Court of Appeals of Georgia·Decided April 11, 1980·No. 59265·Published·Cited by 13 cases

Opinions

Shulman, Judge.

Defendants were convicted of possessing obscene devices with intent to sell, in violation of Code Ann. § 26-2101 (c). We affirm.

1. Appellant asserts error in the trial court’s instruction that "every person is assumed to intend the natural and necessary consequences of his act” on the ground that such charge is impermissibly burden shifting under the rationale of Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39).

Although the better practice would be for the trial court to [428] expressly advise the jury that the presumption of intent is rebuttable, the court’s charge in this case, when read as a whole, created merely a permissible presumption of criminal intention, and did not create a mandatory presumption of such intent. Therefore, it was neither conclusive nor burden-shifting. Whisenhunt v. State, 152 Ga. App. 829 (264 SE2d 271). See also Skrine v. State, 244 Ga. 520 (260 SE2d 900). We consequently find no error in the charge as given.

Submitted January 9, 1980 Decided April 11, 1980 Rehearing denied April 29, 1980 Glenn Zell, for appellant. Hinson McAuliffe, Solicitor, Leonard W. Rhodes, Assistant Solicitor, for appellee.

2. This appeal was originally filed in the Supreme Court, but was transferred to this court without on opinion. The Supreme Court’s refusal to review defendant’s constitutional challenges to Code Ann. § 26-2101 (c) mandates the finding that appellant’s contentions of error on constitutional grounds are without merit. See Wadley Sou. R. Co. v. Faglee, 42 Ga. App. 80 (1) (155 SE 65), revd. on other grounds, 173 Ga. 814 (161 SE 847).

3. Appellant complains of the charge on scienter. "The charge given here was in the exact language of the Code section and did not place a greater burden on appellant than 'knowledge of the . . . materials he [sought to distribute].’ ” Sewell v. State, 238 Ga. 495, 496 (233 SE2d 187).

Judgment affirmed.

Quillian, P. J., concurs. Carley, J., concurs specially.

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Shulman, Judge.

Defendants were convicted of possessing obscene devices with intent to sell, in violation of Code Ann. § 26-2101 (c). We affirm.

1. Appellant asserts error in the trial court’s instruction that "every person is assumed to intend the natural and necessary consequences of his act” on the ground that such charge is impermissibly burden shifting under the rationale of Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39).

Although the better practice would be for the trial court to [428] expressly advise the jury that the presumption of intent is rebuttable, the court’s charge in this case, when read as a whole, created merely a permissible presumption of criminal intention, and did not create a mandatory presumption of such intent. Therefore, it was neither conclusive nor burden-shifting. Whisenhunt v. State, 152 Ga. App. 829 (264 SE2d 271). See also Skrine v. State, 244 Ga. 520 (260 SE2d 900). We consequently find no error in the charge as given.

Submitted January 9, 1980 Decided April 11, 1980 Rehearing denied April 29, 1980 Glenn Zell, for appellant. Hinson McAuliffe, Solicitor, Leonard W. Rhodes, Assistant Solicitor, for appellee.

2. This appeal was originally filed in the Supreme Court, but was transferred to this court without on opinion. The Supreme Court’s refusal to review defendant’s constitutional challenges to Code Ann. § 26-2101 (c) mandates the finding that appellant’s contentions of error on constitutional grounds are without merit. See Wadley Sou. R. Co. v. Faglee, 42 Ga. App. 80 (1) (155 SE 65), revd. on other grounds, 173 Ga. 814 (161 SE 847).

3. Appellant complains of the charge on scienter. "The charge given here was in the exact language of the Code section and did not place a greater burden on appellant than 'knowledge of the . . . materials he [sought to distribute].’ ” Sewell v. State, 238 Ga. 495, 496 (233 SE2d 187).

Judgment affirmed.

Quillian, P. J., concurs. Carley, J., concurs specially.

Denton v. State, 268 S.E.2d 725, 154 Ga. App. 427, 1980 Ga. App. LEXIS 2209 (Ga. Ct. App. 1980).

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