Thomas v. State

220 S.E.2d 736, 136 Ga. App. 165, 1975 Ga. App. LEXIS 1284

Opinions

Stolz, Judge.

The defendant was indicted and tried for the murder of his estranged wife and convicted of voluntary manslaughter.

1. The defendant did not testify or offer any evidence in his defense. The trial judge charged the jury, "I charge you that the defendant in a criminal case has the right to take the stand and be sworn as any other witness, or he has an absolute right to remain silent and not testify. I charge you that in the event the defendant elects not to testify in this case, you shall draw no inference whatsoever from his failure to be sworn and to so testify.” At the conclusion of the charge, the trial judge inquired if counsel had any exceptions to the charge and received a negative reply. The defendant enumerated as error the charge. The state contended that the defendant had waived any objection by the negative reply to the judge’s question. We certified the question of waiver to the Supreme Court. That court, in a comprehensive opinion, held no waiver to have existed. Thomas v. State, 234 Ga. 615 (216 SE2d 859). See also Sims v. State, 234 Ga. 177 (214 SE2d 902).

2. The charge as given by the trial judge is a correct statement of the law. The issue presented is whether this portion of the charge constituted a "comment” by the court and thus violated that portion of Code Ann. § 38-415 which provides: "The failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure.” In McCann v. State, 108 Ga. App. 316 (132 SE2d 813), it was held that the prohibition against comment applies equally to the trial judge and the district attorney. A charge very similar to the one in issue was given in Linder v. State, 132 Ga. App. 624 (3) (208 SE2d 630) and held to be reversible error. However, in Woodard v. State, 234 Ga. 901 (7), the Supreme Court disapproved the decision of this court in Linder v. State, supra, and held such comment by the trial judge permissible.

Argued January 14,1975 Decided October 17, 1975. Al Bridges, for appellant. Richard Bell, District Attorney, Edward H. Kellogg, Assistant District Attorney, for appellee.

3. The trial judge did not err in failing to charge on insanity in the absence of a timely, written request to do so. "Every person is presumed to be of sound mind and discretion but this presumption may be rebutted.” Code Ann. § 26-606. The accused is presumed sane. Danforth v. State, 75 Ga. 614, 628 (58 AR 480). The fact that the accused stabbed his estranged wife in a public place in the presence of witnesses is not, in and of itself, sufficient to rebut the presumption of sanity and require the trial judge to charge on insanity as a defense.

Judgment affirmed.

Deen, P. J. concurs. Evans, J., concurs specially.