Ousley v. State

Court of Appeals of Georgia

Ousley v. State

279 S.E.2d 490, 158 Ga. App. 186, 1981 Ga. App. LEXIS 2119

CourtCourt of Appeals of Georgia

DecidedApril 6, 1981

Docket61072

StatusPublished

Cited by3 cases

This text of 279 S.E.2d 490 (Ousley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ousley v. State, 279 S.E.2d 490, 158 Ga. App. 186, 1981 Ga. App. LEXIS 2119 (Ga. Ct. App. 1981).

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Opinion

Sognier, Judge.

Ousley was convicted in the Superior Court of Dougherty County of armed robbery. On appeal he contends the trial court erred (1) by failing to charge, on timely written request, that mere presence at the scene, even coupled with flight from authority, is insufficient, without more, for conviction; and (2) by charging the jury in a manner suggesting that the jury must conclude beyond a reasonable doubt that appellant was not guilty in order to acquit him of the charge.

1. In regard to the requested charge on mere presence at the scene, the requested charge was a correct statement of the law. Fleming v. State, 149 Ga. App. 781 (256 SE2d 56) (1979). However, in the instant case there was far more than “mere presence” and flight from authority. The victim testified that Ousley was the first to attack him, and Ousley hit the victim with the butt of a gun he (Ousley) was carrying. Further, Ousley testified that he produced a gun during the altercation and fired it, and that he knocked the victim down and “kneed” him twice. Ousley also testified that he demanded that the victim give up his money. In short, appellant was an active participant in the robbery and “mere presence” is not a proper description of his role. Under such circumstances the court properly refused the request to charge as it was not applicable to the facts of the case. Stocks v. State, 153 Ga. App. 72, 73 (2) (264 SE2d 552) (1980).

2. The court charged the jury, in part, as follows: “On the other hand, he had filed a plea of not guilty. If, upon a consideration of all the evidence in the case you reach the conclusion beyond a reasonable doubt that he is not guilty or if you have reasonable doubt as to his guilt, the form of the verdict would be, ‘We, the jury, find the defendant, Herman Ousley, not guilty.’ ” The excerpt of the charge complained of “is a mere fragment of the charge, and when the complete charge on such subject is considered, no error appears.” Robinson v. State, 229 Ga. 14, 16 (2) (189 SE2d 53) (1972).

Judgment affirmed.

Shulman, P. J., and Birdsong, J., concur. [187]*187Decided April 6, 1981. J. Clinton Smith, Jr., for appellant. William S. Lee, District Attorney, for appellee.

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Sognier, Judge.

Ousley was convicted in the Superior Court of Dougherty County of armed robbery. On appeal he contends the trial court erred (1) by failing to charge, on timely written request, that mere presence at the scene, even coupled with flight from authority, is insufficient, without more, for conviction; and (2) by charging the jury in a manner suggesting that the jury must conclude beyond a reasonable doubt that appellant was not guilty in order to acquit him of the charge.

1. In regard to the requested charge on mere presence at the scene, the requested charge was a correct statement of the law. Fleming v. State, 149 Ga. App. 781 (256 SE2d 56) (1979). However, in the instant case there was far more than “mere presence” and flight from authority. The victim testified that Ousley was the first to attack him, and Ousley hit the victim with the butt of a gun he (Ousley) was carrying. Further, Ousley testified that he produced a gun during the altercation and fired it, and that he knocked the victim down and “kneed” him twice. Ousley also testified that he demanded that the victim give up his money. In short, appellant was an active participant in the robbery and “mere presence” is not a proper description of his role. Under such circumstances the court properly refused the request to charge as it was not applicable to the facts of the case. Stocks v. State, 153 Ga. App. 72, 73 (2) (264 SE2d 552) (1980).

2. The court charged the jury, in part, as follows: “On the other hand, he had filed a plea of not guilty. If, upon a consideration of all the evidence in the case you reach the conclusion beyond a reasonable doubt that he is not guilty or if you have reasonable doubt as to his guilt, the form of the verdict would be, ‘We, the jury, find the defendant, Herman Ousley, not guilty.’ ” The excerpt of the charge complained of “is a mere fragment of the charge, and when the complete charge on such subject is considered, no error appears.” Robinson v. State, 229 Ga. 14, 16 (2) (189 SE2d 53) (1972).

Judgment affirmed.

Shulman, P. J., and Birdsong, J., concur. [187]*187Decided April 6, 1981. J. Clinton Smith, Jr., for appellant. William S. Lee, District Attorney, for appellee.

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279 S.E.2d 490, 158 Ga. App. 186, 1981 Ga. App. LEXIS 2119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ousley-v-state-gactapp-1981.

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