Duffie v. State

267 S.E.2d 501, 154 Ga. App. 61, 1980 Ga. App. LEXIS 2042

• Court: Court of Appeals of Georgia
• Decided: March 19, 1980
• Docket: 59383
• Status: Published

Opinions

Shulman, Judge.

Appellant was convicted of knowingly and wilfully obstructing and hindering a law enforcement officer in the lawful discharge of his duties. Code Ann. § 26-2505. Finding no error, we affirm.

1. Appellant contends that the trial court’s failure to instruct more fully on what constitutes the "lawful discharge of official duties” mandates a reversal of its adverse judgment. We cannot agree.

Argued February 13, 1980 Decided March 19, 1980. James P. Brown, Jr., Amy Totenberg, Barry M. Hazen, Al Horn, for appellant. E. Byron Smith, District Attorney, W. Hal Craig, Assistant District Attorney, for appellee.

"The court charged the jury, using the language of the statute, that a person who 'knowingly and wilfully obstructs any law enforcement officer in the lawful discharge of his official duties,’ is guilty of a misdemeanor. No futher definition or explanation of the charge would be necessary without written request.” Ratliff v. State, 133 Ga. App. 256 (2) (211 SE2d 192). No request appearing, the charge of the court was not erroneous for the reason assigned.

2. We similarly find no merit in appellant’s assertion that the trial court’s charge on presumptions was 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 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 (1979). See also Skrine v. State, 244 Ga. 520 (260 SE2d 900). It should be noted that the trial judge in his charge used the terms "[ijntent may be shown . .. may be inferred ...” which terms in themselves have only permissive and discretionary force.

We must also take issue with appellant’s contention that the rebuttable permissive presumption on which the trial court instructed was irrational on the grounds that it was not more likely than not, under the facts in the case at bar, that defendant intended the natural and probable consequences of his actions. "Obviously it is more likely than not that a normal defendant intends the natural and probable consequences of his acts . . . [T]he presumption was entirely rational.” Skrine, supra, p. 521.

Judgment affirmed.

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