Johnson, Judge.
James Moore, Jr., was convicted of two counts of rape, kidnapping, aggravated assault and aggravated sodomy. He appeals from his convictions.
1. In two separate enumerations of error, Moore argues that, despite his having interposed insanity as a defense, the trial court failed to give a complete charge on insanity and mental illness as required by OCGA § 17-7-131 (b) (3). OCGA § 17-7-131 (b) (3) provides: “In all cases in which the defense of insanity is interposed, the trial judge shall charge the jury, in addition to other appropriate charges, the following: (A) I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pur[208] suant to law. (B) I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be given over to the Department of Corrections or the Department of Human Resources, as the mental condition of the defendant may warrant.” (Emphasis supplied.) At trial, rather than giving the charge as set out in the statute, the court stated: “Now, if you find the defendant insane at the time of the act or mentally ill at the time of the alleged act and your verdict so specifies, then the defendant will be committed to the proper facility until the Court is satisfied — and to be held as required by law until be — and ordered to be released as provided by law.” Defense counsel excepted to the charge.
We agree with Moore that the court erred in giving this summary rather than using the statutory language. “The Code mandates that the charge set forth in OCGA § 17-7-131 (b) (3) [(A) and] (B) ‘shall’ be given.” (Emphasis in original.) Spraggins v. State, 258 Ga. 32, 33 (2) (364 SE2d 861) (1988). “[T]he failure to comply with a mandatory rule is presumptively harmful.” (Citations omitted.) Id. at 33 (3). The legislature made the charge mandatory, perhaps to prevent courts from incorrectly summarizing the law and confusing the jury, as was the case in Prophitt v. State, 183 Ga. App. 332, 333 (1) (358 SE2d 892) (1987). In Prophitt, the trial court charged the jury in accordance with OCGA § 17-7-131 (b) (3), (A) & (B). After beginning deliberations, the jury asked the court to define the possible verdicts it would be authorized to return. The court responded by summarizing the statute. We found the court’s instructions to be ambiguous with regard to the crucial issue of who would have custody and control of the defendant and who would ultimately have the authority to discharge him in the event he were found not guilty by reason of insanity, and held that the recharge constituted reversible error. Id. In this case, the court’s charge failed to indicate who would have custody and control of Moore in the event he were found not guilty by reason of insanity or guilty but mentally ill. We also found reversible error in Loftin v. State, 180 Ga. App. 613, 615 (3) (349 SE2d 777) (1986), where the trial court instructed the jury that a state mental institution would have the ultimate power to order the release of an insanity acquittee, when that power actually rests with the trial court. (OCGA § 17-7-131 (b) (3) was not in effect at the time of Loftin’s trial.) We stated that the court’s summary was an erroneous statement of the law and the jury’s verdict may have been influenced by its belief that the procedural safeguards were inadequate and that the defendant’s dangerous propensities may not be given adequate consideration by a mental institution in determining whether release was appropriate. Id. Unlike in Loftin, the trial court in the instant case correctly stated that the power to order Moore’s release rested with the court. However, we believe the jury in this case may have been, as in Loftin, [209] misled as to Moore’s disposition were it to return an insanity verdict. In simply stating that the defendant would be committed to the “proper facility,” the trial court failed to inform the jury that, depending upon the verdict, the proper facility might include the Department of Corrections. Such an omission may have influenced the jury’s verdict. If the court misleads the jury as to the defendant’s treatment and release if found insane, he has effectively been deprived of his insanity defense. See generally Cranford v. State, 186 Ga. App. 862, 863 (2) (369 SE2d 50) (1988).
In addition, the trial court’s omission of the words “if ever” from the charge may have left the jury with the incorrect impression that the court would definitely be ordering Moore’s release at some point; the “if ever” language implies the contrary. “Failure to give such a charge when required by statute is reversible error.” Guilford v. State, 258 Ga. 253, 254 (3) (368 SE2d 116) (1988). Therefore, Moore is entitled to a new trial wherein the court is instructed to give the charge required by the statute.
2. Moore contends the trial court erred in not directing the jury to cease deliberations if it found the defendant lacked the ability to distinguish right from wrong at the time the act was committed. This enumeration lacks merit. The court charged the jury that if it found that the defendant was incapable of distinguishing between right and wrong at the time of the act, then the jury had the duty to acquit him because of insanity and cease deliberations. We find no error.
3. Moore’s contention that the court erred in failing to instruct the jury that the state bore the burden of proving he was sane is without merit. In Georgia, an individual’s sanity is presumed. Loumakis v. State, 179 Ga. App. 294, 299 (9) (346 SE2d 373) (1986). “[T]he United States Supreme Court has found no constitutional infirmity in a rule which places the burden upon the defendant to prove his insanity. [Cits.]” Pope v. State, 256 Ga. 195, 208 (16) (345 SE2d 831) (1986).
4. Moore claims the trial court erred in allowing the state to place his character in issue by inquiring into a prior assault he allegedly committed upon the victim, his estranged wife. Prior to trial, the state asked the court to rule on the admissibility of this evidence. Defense counsel objected to its admissibility, arguing that it was prejudicial and improperly placed Moore’s character in issue. The trial court ruled the evidence admissible for the limited purposes of explaining the victim’s conduct and the defendant’s state of mind. Defense counsel apparently acquiesced in the court’s ruling and made no objection when the evidence was introduced at trial. Moore’s argument contained within this enumeration raises a “similar transaction” issue not raised in his objection below. Since no timely, specific objection was made at trial, it is treated as a waiver on appeal. Brenneman [210] v. State, 200 Ga. App. 111, 115 (5) (407 SE2d 93) (1991).
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Johnson, Judge.
James Moore, Jr., was convicted of two counts of rape, kidnapping, aggravated assault and aggravated sodomy. He appeals from his convictions.
1. In two separate enumerations of error, Moore argues that, despite his having interposed insanity as a defense, the trial court failed to give a complete charge on insanity and mental illness as required by OCGA § 17-7-131 (b) (3). OCGA § 17-7-131 (b) (3) provides: “In all cases in which the defense of insanity is interposed, the trial judge shall charge the jury, in addition to other appropriate charges, the following: (A) I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pur[208] suant to law. (B) I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be given over to the Department of Corrections or the Department of Human Resources, as the mental condition of the defendant may warrant.” (Emphasis supplied.) At trial, rather than giving the charge as set out in the statute, the court stated: “Now, if you find the defendant insane at the time of the act or mentally ill at the time of the alleged act and your verdict so specifies, then the defendant will be committed to the proper facility until the Court is satisfied — and to be held as required by law until be — and ordered to be released as provided by law.” Defense counsel excepted to the charge.
We agree with Moore that the court erred in giving this summary rather than using the statutory language. “The Code mandates that the charge set forth in OCGA § 17-7-131 (b) (3) [(A) and] (B) ‘shall’ be given.” (Emphasis in original.) Spraggins v. State, 258 Ga. 32, 33 (2) (364 SE2d 861) (1988). “[T]he failure to comply with a mandatory rule is presumptively harmful.” (Citations omitted.) Id. at 33 (3). The legislature made the charge mandatory, perhaps to prevent courts from incorrectly summarizing the law and confusing the jury, as was the case in Prophitt v. State, 183 Ga. App. 332, 333 (1) (358 SE2d 892) (1987). In Prophitt, the trial court charged the jury in accordance with OCGA § 17-7-131 (b) (3), (A) & (B). After beginning deliberations, the jury asked the court to define the possible verdicts it would be authorized to return. The court responded by summarizing the statute. We found the court’s instructions to be ambiguous with regard to the crucial issue of who would have custody and control of the defendant and who would ultimately have the authority to discharge him in the event he were found not guilty by reason of insanity, and held that the recharge constituted reversible error. Id. In this case, the court’s charge failed to indicate who would have custody and control of Moore in the event he were found not guilty by reason of insanity or guilty but mentally ill. We also found reversible error in Loftin v. State, 180 Ga. App. 613, 615 (3) (349 SE2d 777) (1986), where the trial court instructed the jury that a state mental institution would have the ultimate power to order the release of an insanity acquittee, when that power actually rests with the trial court. (OCGA § 17-7-131 (b) (3) was not in effect at the time of Loftin’s trial.) We stated that the court’s summary was an erroneous statement of the law and the jury’s verdict may have been influenced by its belief that the procedural safeguards were inadequate and that the defendant’s dangerous propensities may not be given adequate consideration by a mental institution in determining whether release was appropriate. Id. Unlike in Loftin, the trial court in the instant case correctly stated that the power to order Moore’s release rested with the court. However, we believe the jury in this case may have been, as in Loftin, [209] misled as to Moore’s disposition were it to return an insanity verdict. In simply stating that the defendant would be committed to the “proper facility,” the trial court failed to inform the jury that, depending upon the verdict, the proper facility might include the Department of Corrections. Such an omission may have influenced the jury’s verdict. If the court misleads the jury as to the defendant’s treatment and release if found insane, he has effectively been deprived of his insanity defense. See generally Cranford v. State, 186 Ga. App. 862, 863 (2) (369 SE2d 50) (1988).
In addition, the trial court’s omission of the words “if ever” from the charge may have left the jury with the incorrect impression that the court would definitely be ordering Moore’s release at some point; the “if ever” language implies the contrary. “Failure to give such a charge when required by statute is reversible error.” Guilford v. State, 258 Ga. 253, 254 (3) (368 SE2d 116) (1988). Therefore, Moore is entitled to a new trial wherein the court is instructed to give the charge required by the statute.
2. Moore contends the trial court erred in not directing the jury to cease deliberations if it found the defendant lacked the ability to distinguish right from wrong at the time the act was committed. This enumeration lacks merit. The court charged the jury that if it found that the defendant was incapable of distinguishing between right and wrong at the time of the act, then the jury had the duty to acquit him because of insanity and cease deliberations. We find no error.
3. Moore’s contention that the court erred in failing to instruct the jury that the state bore the burden of proving he was sane is without merit. In Georgia, an individual’s sanity is presumed. Loumakis v. State, 179 Ga. App. 294, 299 (9) (346 SE2d 373) (1986). “[T]he United States Supreme Court has found no constitutional infirmity in a rule which places the burden upon the defendant to prove his insanity. [Cits.]” Pope v. State, 256 Ga. 195, 208 (16) (345 SE2d 831) (1986).
4. Moore claims the trial court erred in allowing the state to place his character in issue by inquiring into a prior assault he allegedly committed upon the victim, his estranged wife. Prior to trial, the state asked the court to rule on the admissibility of this evidence. Defense counsel objected to its admissibility, arguing that it was prejudicial and improperly placed Moore’s character in issue. The trial court ruled the evidence admissible for the limited purposes of explaining the victim’s conduct and the defendant’s state of mind. Defense counsel apparently acquiesced in the court’s ruling and made no objection when the evidence was introduced at trial. Moore’s argument contained within this enumeration raises a “similar transaction” issue not raised in his objection below. Since no timely, specific objection was made at trial, it is treated as a waiver on appeal. Brenneman [210] v. State, 200 Ga. App. 111, 115 (5) (407 SE2d 93) (1991).
5. Moore’s contention that the trial court erred in allowing the state to play a 911 audiotape of calls made by the victim and witnesses during the attack is without merit. At trial, Moore argued the tape was inadmissible because it was redundant, lacked probative value, and constituted hearsay.1 The objection was properly overruled. “Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. “Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. ... A trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered will not be disturbed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Belcher v. State, 201 Ga. App. 139, 140-141 (2) (410 SE2d 344) (1991). We will not disturb the trial court’s ruling on this issue.
6. Moore argues the trial court erred in instructing the jury that a person is presumed to be “of sound mind and distinction” rather than “of sound mind and discretion” (see OCGA § 16-2-3). This error is not likely to recur on retrial. In any event, it is highly probable that the error did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).
Judgment reversed.
Birdsong, P. J., Pope, P. J., Blackburn and Smith, JJ., concur. Beasley, C. J., McMurray, P. J., Andrews and Ruffin, JJ., dissent.