Donnelly v. State

211 S.E.2d 19, 133 Ga. App. 391, 1974 Ga. App. LEXIS 1080

• Court: Court of Appeals of Georgia
• Decided: November 22, 1974
• Docket: 49467
• Status: Published

Opinion

Bell, Chief Judge.

The defendant was convicted of aggravated assault, carrying a concealed weapon, and carrying a pistol without a license. Held:

At trial defendant offered no evidence. The only argument concerns the following charge to the jury. "I further charge you,... that the law says that a defendant is not compellable to give evidence for or against himself.” It is contended that the challenged instruction impermissibly calls defendant’s silence to the attention of the jury. The instruction is taken from Code Ann. § 38-416 and is a correct statement of law. It was not directed to defendant’s silence in any manner nor would it cause the jury to infer that his failure to testify was to be counted against him. See Code § 38-415, as amended, and Hillman v. State, 67 Ga. App. 292 (20 SE2d 91). Moreover, in considering the entire charge of nine pages, the location of the single sentence complained of confirms the lack of merit in this appeal. The jury could not have been misled. The single sentence objected to was inserted at a point where the trial judge was explaining various legal principles. Among these were the presumption of innocence, the burden of proof being upon the state, a full explanation of the "reasonable doubt” doctrine and those other legal principles aimed at giving the defendant full protection of his constitutional rights. This single sentence was merely an instruction of an abstract principle of law. No error has been shown.

Judgment affirmed.

Quillian and Clark, JJ, concur. Glenn Zell, for appellant. Lewis R. Slaton, District Attorney, Joel M. Feldman, Carter Goode, Isaac Jenrette, Assistant District Attorneys, for appellee.