Todd v. State

Court of Appeals of Georgia

Todd v. State

189 S.E.2d 696, 125 Ga. App. 841, 1972 Ga. App. LEXIS 1489

CourtCourt of Appeals of Georgia

DecidedMarch 17, 1972

Docket46624

StatusPublished

Cited by2 cases

This text of 189 S.E.2d 696 (Todd 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

Todd v. State, 189 S.E.2d 696, 125 Ga. App. 841, 1972 Ga. App. LEXIS 1489 (Ga. Ct. App. 1972).

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Opinions

Jordan, Presiding Judge.

Todd was convicted and sentenced for burglary, and appealed the overruling of a motion for new trial. Held:

1. The defendant contends that the trial judge erred in instructing the jury as follows: "If you have circumstances satisfactorily proven which point to his guilt and which are irreconcilable with his innocence or which require explanation from him [and] may be explained if he be innocent but which are not explained [this] would justify a jury in rendering a verdict of guilty.” The words in brackets are supplied for clarity. It is contended that these instructions (a) are a comment on the failure to be sworn and in violation of the conditional right to remain [842]*842silent, (b) are a comment on the unsworn statement of the defendant, (c) shift the burden to present evidence, (d) shift the burden of proof, (e) are confusing and misleading, a misstatement of the law, and prejudicial, (f) and relieve the State of proving guilt beyond a reasonable doubt.

Argued October 6, 1971 Decided March 17, 1972 Rehearing denied March 31, 1972. Glenn Zell, for appellant.

In our opinion the instructions as given disclose no harmful error for any reason argued and insisted upon. The defendant elected to make an unsworn statement to the jury and to explain his possession of silver coins, and the jury was fully instructed as to the manner of considering his statement. The instructions complained of were immediately preceded by instructions on circumstantial evidence, including the statement that "no person can be convicted upon circumstantial evidence unless the circumstances prove and indicate guilt to a conclusion which is irreconcilable with the defendant’s innocence.” The charge also includes instructions making it quite clear that if the jury should entertain a reasonable doubt, it was the duty of the jury to acquit. See Hubbard v. State, 123 Ga. App. 597 (181 SE2d 890); Aiken v. State, 226 Ga. 840 (178 SE2d 202); Strickland v. State, 115 Ga. App. 278 (154 SE2d 622), and cases cited therein.

2. The remaining contention of the defendant, that the trial court erred in following the new procedure for sentencing for an offense committed prior to the effective date of the Act, has been answered adversely to the defendant by the reply of the Supreme Court to the certified question of this court. Todd v. State, 228 Ga. 746 (187 SE2d 831).

Judgment affirmed.

Bell, C. J., Hall, P. J., Eberhardt, Deen, Quillian and Clark, JJ., concur. Pannell and Evans, JJ., dissent. Lewis R. Slaton, District Attorney, Joel M. Feldman, Carter Goode, Creighton W. Sossomon, for appellee.

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Jordan, Presiding Judge.

Todd was convicted and sentenced for burglary, and appealed the overruling of a motion for new trial. Held:

1. The defendant contends that the trial judge erred in instructing the jury as follows: "If you have circumstances satisfactorily proven which point to his guilt and which are irreconcilable with his innocence or which require explanation from him [and] may be explained if he be innocent but which are not explained [this] would justify a jury in rendering a verdict of guilty.” The words in brackets are supplied for clarity. It is contended that these instructions (a) are a comment on the failure to be sworn and in violation of the conditional right to remain [842]*842silent, (b) are a comment on the unsworn statement of the defendant, (c) shift the burden to present evidence, (d) shift the burden of proof, (e) are confusing and misleading, a misstatement of the law, and prejudicial, (f) and relieve the State of proving guilt beyond a reasonable doubt.

Argued October 6, 1971 Decided March 17, 1972 Rehearing denied March 31, 1972. Glenn Zell, for appellant.

In our opinion the instructions as given disclose no harmful error for any reason argued and insisted upon. The defendant elected to make an unsworn statement to the jury and to explain his possession of silver coins, and the jury was fully instructed as to the manner of considering his statement. The instructions complained of were immediately preceded by instructions on circumstantial evidence, including the statement that "no person can be convicted upon circumstantial evidence unless the circumstances prove and indicate guilt to a conclusion which is irreconcilable with the defendant’s innocence.” The charge also includes instructions making it quite clear that if the jury should entertain a reasonable doubt, it was the duty of the jury to acquit. See Hubbard v. State, 123 Ga. App. 597 (181 SE2d 890); Aiken v. State, 226 Ga. 840 (178 SE2d 202); Strickland v. State, 115 Ga. App. 278 (154 SE2d 622), and cases cited therein.

2. The remaining contention of the defendant, that the trial court erred in following the new procedure for sentencing for an offense committed prior to the effective date of the Act, has been answered adversely to the defendant by the reply of the Supreme Court to the certified question of this court. Todd v. State, 228 Ga. 746 (187 SE2d 831).

Judgment affirmed.

Bell, C. J., Hall, P. J., Eberhardt, Deen, Quillian and Clark, JJ., concur. Pannell and Evans, JJ., dissent. Lewis R. Slaton, District Attorney, Joel M. Feldman, Carter Goode, Creighton W. Sossomon, for appellee.

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189 S.E.2d 696, 125 Ga. App. 841, 1972 Ga. App. LEXIS 1489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/todd-v-state-gactapp-1972.

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