Kemp v. State, 175 S.E.2d 869 (Ga. 1970). · Go Syfert
Kemp v. State, 175 S.E.2d 869 (Ga. 1970). Cases Citing This Book View Copy Cite
“the burden is on him who asserts error to show it affirmatively by the record.”
64 citation events (16 in the last 25 years) across 2 distinct courts.
Strongest positive: Bradley v. State (ga, 2013-03-18)
Treatment trajectory · 1972 → 2026 · click a year to view as-of
1972 1999 2026
Top citers, strongest first. 12 distinct citers.
discussed Cited as authority (quoted) Bradley v. State (2×) also: Cited "see, e.g."
Ga. · 2013 · signal: see also · quote attribution · 1 verbatim quote · confidence low
the burden is on him who asserts error to show it affirmatively by the record.
discussed Cited as authority (rule) Thomas v. State
Ga. · 2017 · confidence medium
Further, “[t]he burden is on him who asserts error to show it affirmatively by the record [Cit.],” Kemp v. State, 226 Ga. 506, 507 (2) ( 175 SE2d 869 ) (1970), and Thomas’s failure to pursue the available statutory provisions to ensure that the record before this Court reflects that which he contends occurred prevents this Court from considering his assertion that the trial court erred in rejecting requests for jury instructions.
discussed Cited as authority (rule) Daniels v. State
Ga. · 2017 · confidence medium
Further, “[t]he burden is on him who asserts error to show it affirmatively by the record [Cit.],” Kemp v. State, 226 Ga. 506, 507 (2) ( 175 SE2d 869 ) (1970), and Thomas’s failure to pursue the available statutory provisions to ensure that the record before this Court reflects that which he contends occurred prevents this Court from considering his assertion that the trial court erred in rejecting requests for jury instructions.
discussed Cited as authority (rule) Collins v. State (2×)
Ga. Ct. App. · 2004 · confidence medium
See generally McClure v. State, 179 Ga.App. 245, 246 (1), 345 S.E.2d 922 (1986) (procedural bar against double jeopardy precludes successive prosecutions for the same offense; substantive bar against double jeopardy precludes successive punishments for the same offense). [11] (Citation and punctuation omitted.) Kemp v. State, 226 Ga. 506, 507 (2), 175 S.E.2d 869 (1970). [12] (Footnotes omitted.) Hines v. State, 276 Ga. 491, 492 (2), 578 S.E.2d 868 (2003). [13] (Citations and punctuation omitted.) Trammell v. State, 183 Ga. 711, 715 (5), 189 S.E. 529 (1937); accord State Hwy.
discussed Cited as authority (rule) Fortson v. State (2×)
Ga. · 2003 · confidence medium
Kemp v. State, 226 Ga. 506, 507 (2), 175 S.E.2d 869 (1970).
discussed Cited as authority (rule) Wallace v. State
Ga. · 2002 · confidence medium
See Malcolm v. State, 263 Ga. at 371-372 . 9 See Pace, 274 Ga. at 71 . 10 See, e.g., Foster v. State, 240 Ga. 858, 859 ( 242 SE2d 600 ) (1978); Kemp v. State, 226 Ga. 506, 507 ( 175 SE2d 869 ) (1970); Ethridge v. State, 163 Ga. 186, 191 ( 136 SE 72 ) (1926). 11 255 Ga. 464, 465 ( 339 SE2d 712 ) (1986).
discussed Cited as authority (rule) Clark v. State (2×)
Ga. Ct. App. · 1990 · confidence medium
The Supreme Court addressed this proposition in Kemp v. State, 226 Ga. 506, 507-509 ( 175 SE2d 869 ).
discussed Cited as authority (rule) Moon v. State
Ga. Ct. App. · 1980 · confidence medium
Defendant moved for a mistrial on the basis that his counsel’s "argument [was] going to be so severely limited that whatever opportunity or chance that he may have had to have an effective advocate to sway a borderline juror [was] not going to be there.” First, " '[t]he burden is on him who asserts error to show it affirmatively by the record.’ ” Kemp v. State, 226 Ga. 506, 507 ( 175 SE2d 869 ); Marshall v. State, 239 Ga. 101 (2) ( 236 SE2d 58 ).
discussed Cited as authority (rule) Hancock v. Oates
Ga. · 1979 · confidence medium
Held: The appellant argues in her brief that it was error for this case to be placed on the trial court calendar without notice to her under the provisions of Code Ann. § 81 A-140 (c) (Ga. L. 1966, pp. 609, 653; as amended). " 'The burden is on him who asserts error to show it affirmatively by the record.’ Kemp v. State, 226 Ga. 506, 507 ( 175 SE2d 869 ) (1970).” Marshall v. State, 239 Ga. 101 (2) ( 236 SE2d 58 ) (1977).
examined Cited as authority (rule) Bradham v. State (4×)
Ga. · 1979 · confidence medium
Kemp v. State, 226 Ga. 506, 507 (2) ( 175 SE2d 869 ) (1970) and Patterson v. State, 239 Ga. 409, 411 (1) ( 238 SE2d 2 ) (1977) will not be followed.
cited Cited as authority (rule) Marshall v. State
Ga. · 1977 · confidence medium
"The burden is on him who asserts error to show it affirmatively by the record.” Kemp v. State, 226 Ga. 506, 507 ( 175 SE2d 869 ) (1970).
examined Cited "see" Hill v. State (4×)
Ga. · 1976 · signal: see · confidence high
See Kemp v. State, 226 Ga. 506 (2) ( 175 SE2d 869 ) (1970).
Kemp
v.
the State
25804.
Supreme Court of Georgia.
Jun 9, 1970.
175 S.E.2d 869
C. B. King, for appellant., Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Courtney Wilder Stanton, Assistant Attorneys General, for appellee.
Felton.
Cited by 31 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 81%
Citer courts: Supreme Court of Georgia (1)
Felton, Justice.

This is an appeal from a judgment of conviction and a life sentence for the crime of rape.

1. The court did not err in its judgment denying the defendant’s motion challenging the array of the grand and traverse juries, since no prima facie case of racially motivated systematic exclusion was established, under the holding in Whitus v. Georgia, 385 U. S. 545 (86 SC 1761, 16 LE2d 895) and Jones v. Georgia, 389 U. S. 24 (88 SC 4, 19 LE2d 25), by the evidence, which showed that the jury lists from which the defendant’s grand and traverse juries were drawn were compiled in accordance with Code § 59-106, as amended (Ga. L. 1967, p. 251);[*507] the source list utilized was the voters’ registration list as used in the last general election preceding the compilation; the list of registered electors did not identify racially the persons thereupon listed; there were approximately 6,000 names on the list of voters; the racial composition of the voters’ registration list was not established; the percentage of Negroes on the jury lists was not sufficiently established; and the numbers of Negroes on the grand and traverse venires and juries are not shown.

2. Even if the court erred in disallowing defendant’s challenge for cause of two traverse jury veniremen, such error would not be reversible, since the record shows that these two were stricken by defendant’s peremptory challenges and that the only two jurors impaneled after defendant had exhausted his peremptory challenges were the twelfth juror and an alternate juror, about the inclusion of which there is no complaint. Cf. Bland v. State, 210 Ga. 100, 101 (78 SE2d 51) and cit. “The burden is on him who asserts error to show it affirmatively by the record.” Roach v. State, 221 Ga. 783 (4) (147 SE2d 299).

3. The court did not err in overruling the motion for a new trial, which did not complain of the overruling of the defendant’s motion for a directed verdict, which latter ruling, unappealed from, became the law of the case as to the sufficiency of the evidence to establish lack of consent. Moreover, the evidence authorized the finding that whatever apparent consent was evident was obtained through a present and immediate fear of serious bodily injury. Mathis v. State, 224 Ga. 816 (165 SE2d 140) and cit.

4. Where the court instructed the jury that, “If you find the force used, if you find any was used, was sufficient to overcome her will so that her will ceased to operate against the consummation of the carnal act, that would be sufficient force,” that force or threat of serious bodily harm is a necessary element to constitute the crime of rape, and that “However, if you find the female first resisted but afterwards finally consented to the sexual act and that her will ceased to operate against this assault, the offense would not be rape,” it was not error to fail to further instruct them to the effect that consent, if obtained by the use of threats or by the use of force must be based upon reasonable[*508] fears and not upon an unreasonable or unreasoning timidity. There was no evidence that the “consent,” if any, was based upon “unreasonable or unreasoning timidity.” On the contrary, the evidence shows that the victim was accosted in her own home by the defendant, an uninvited, criminal intruder, who was armed and threatened to kill her; that, throughout the ordeal, she continually requested that the defendant not kill her, her three-weeks-old baby or her three-year-old sister in the house with her; and that the victim made an immediate complaint.

The verdict and judgment against the defendant were not error for any reason urged.

Judgment affirmed.

All the Justices concur.