Editor's notes.

- In light of the similarity of the issues involved, decisions rendered prior to codification of this principle of law by Ga. L. 1968, p. 1249, § 1 are included in the annotations for this Code section.

Doctrine of continuity is inapplicable in criminal cases.

- Presumption of continuance, that a state of things proved to have once existed is presumed to have continued to exist until a change or some adequate cause of change appears, is not applicable to criminal cases because in criminal cases the presumption of innocence is inviolate. Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822 (1972).

"Presumption of innocence" is not synonymous with "reasonable doubt of guilt."

- The presumption refers to a substantive right, which is in the nature of evidence, and the phrase "reasonable doubt" applies to a mental condition where there is an absence of the degree of proof necessary to produce mental conviction. Ealey v. State, 141 Ga. App. 94, 232 S.E.2d 620 (1977).

Defendant has right to remain silent in view of presumption of innocence. Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822 (1972).

Guilt must affirmatively appear by evidence.

- One accused of crime has right to stand mute and unless it affirmatively appears by evidence that one is guilty, one cannot be legally so held. Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822 (1972).

Under certain proved facts, presumption of guilt may arise.

- While presumptions arise, under certain proved facts, that a criminal charge against accused is well-founded, such presumption can never arise except upon proved facts. Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822 (1972).

Medical malpractice action following crime.

- Because a patient had not been convicted of murder, no court had entered a judgment finding the patient sane at the time of the crime, and the evidence did not establish, as a matter of law, that the patient was sane when the patient killed the patient's mother, the patient was presumed innocent under O.C.G.A. § 16-1-5 and was not a "wrongdoer" whose status as such would be a bar to any of the patient's medical malpractice claims against a psychiatrist, and consequently, summary judgment on that issue or any issue relating to the patient's contributory negligence for causing the patient's mother's death was not authorized by the evidence since a jury issue existed as to whether the patient had the requisite mental capacity to commit murder. Bruscato v. O'Brien, 307 Ga. App. 452, 705 S.E.2d 275 (2010).

Failure to charge as to presumption of innocence requires new trial.

- Failure of trial judge in criminal case to charge jury to effect that defendant enters upon trial with a presumption of innocence in defendant's favor, and that this presumption remains with defendant, in the nature of evidence, until rebutted by proof satisfying jury of defendant's guilt to exclusion of reasonable doubt, is error requiring grant of new trial. Schuh v. State, 150 Ga. App. 700, 258 S.E.2d 328 (1979).

Charge that presumption remains until guilt established beyond reasonable doubt.

- It was not error to charge that defendant entered into murder trial with presumption of innocence in defendant's favor, and that presumption would remain with defendant throughout trial and until defendant's guilt was established by evidence beyond all reasonable doubt. Anderson v. State, 196 Ga. 468, 26 S.E.2d 755 (1943).

"Unless and until" included in charge.

- A charge taken almost verbatim from O.C.G.A. § 16-1-5 and concluding with the statement that no person shall be convicted of any crime "unless and until" each element of the crime is proved beyond a reasonable doubt was not defective. Roberts v. State, 267 Ga. 669, 482 S.E.2d 245 (1997).

Failure to charge that presumption covers incidents occurring before crime charged.

- It afforded no reason for granting new trial that in charging on presumption of innocence court did not also instruct jury that this presumption covered incidents in which evidence showed that defendant had participated shortly before moment of homicide. Anderson v. State, 196 Ga. 468, 26 S.E.2d 755 (1943) (decided under former Code 1933; murder statute, § 26-1004).

Omission to charge that presumption of innocence remains until overcome by proof.

- In absence of appropriate request for more specific instruction, excerpt from charge of court, in which jury were told that defendant was presumed to be innocent, and that burden was upon state to establish defendant's guilt to a moral and reasonable certainty and beyond a reasonable certainty and beyond a reasonable doubt, was not subject to exception merely because judge omitted to state to jury that presumption of innocence remained with defendant until overcome by proof. Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974).

Jury instruction on presence at scene.

- The presumption of innocence is in the nature of evidence and this evidentiary presumption is sufficient to support a proper written request for a jury instruction on mere presence at the scene. Lowe v. State, 241 Ga. App. 335, 526 S.E.2d 634 (1999).

Directed verdicts.

- If prima facie case against accused is made out, though defendant offers no evidence, court has no legal power to direct verdict, or to express opinion of defendant's guilt. Johnson v. State, 69 Ga. App. 440, 26 S.E.2d 121 (1943) (decided under former Code 1933).

At sentencing phase of trial there is no presumption of innocence.

- During sentencing phase of defendant's trial, the defendant, having already been convicted of crimes, benefits from no presumption of innocence. Defendant stands before sentencing jury as a convicted felon. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981), overruled on other grounds, Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442 (1982).

On appeals from findings of guilt, presumption of innocence no longer prevails; the fact finders have determined the credibility of witnesses, and have been convinced beyond a reasonable doubt, and appellate courts review evidence only to determine if there is any evidence sufficient to authorize fact finder to return verdict of guilty. Stallworth v. State, 150 Ga. App. 766, 258 S.E.2d 611 (1979).

Cited in Spencer v. State, 231 Ga. 705, 203 S.E.2d 856 (1974); Ford v. State, 232 Ga. 511, 207 S.E.2d 494 (1974); Woods v. State, 233 Ga. 347, 211 S.E.2d 300 (1974); Royal v. State, 134 Ga. App. 203, 213 S.E.2d 561 (1975); Franklin v. State, 136 Ga. App. 47, 220 S.E.2d 60 (1975); Berryhill v. State, 235 Ga. 549, 221 S.E.2d 185 (1975); Parker v. State, 137 Ga. App. 6, 223 S.E.2d 6 (1975); Carter v. State, 137 Ga. App. 824, 225 S.E.2d 73 (1976); Wiggins v. State, 139 Ga. App. 98, 227 S.E.2d 895 (1976); Dasher v. State, 140 Ga. App. 517, 231 S.E.2d 510 (1976); Futch v. State, 145 Ga. App. 485, 243 S.E.2d 621 (1978); Davis v. State, 147 Ga. App. 107, 248 S.E.2d 181 (1978); Ault v. State, 148 Ga. App. 761, 252 S.E.2d 668 (1979); Moreland v. State, 154 Ga. App. 375, 268 S.E.2d 425 (1980); Wallace v. State, 246 Ga. 738, 273 S.E.2d 143 (1980); Cole v. State, 156 Ga. App. 288, 274 S.E.2d 685 (1980); Phillips v. State, 162 Ga. App. 471, 291 S.E.2d 776 (1982); Bowman v. State, 186 Ga. App. 544, 368 S.E.2d 143 (1988); Kersey v. State, 243 Ga. App. 689, 534 S.E.2d 428 (2000).

Definition of phrase unnecessary.

- It is not necessary to attempt any definition of the phrase "reasonable doubt"; the words are self-explanatory, and simplicity would be rendered confusing, and meaning obscure, by any elaboration. Cason v. State, 60 Ga. App. 626, 4 S.E.2d 713 (1939) (decided under former Code 1933 and organic law); Brooks v. State, 63 Ga. App. 575, 11 S.E.2d 688 (1940);.

An otherwise correct charge in a criminal case on reasonable doubt is not reversible error because the term reasonable doubt is not defined. Brock v. State, 91 Ga. App. 141, 85 S.E.2d 177 (1954) (decided under former Code 1933).

It is not error in absence of a request, to fail to attempt a definition of the words "reasonable doubt." McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633 (1948) (decided under former Code 1933 and organic law).

Court did not err in failing to give to jury a definition of reasonable doubt, where there was no written request for such definition; it was sufficient to charge that jury must be satisfied by evidence beyond a reasonable doubt of defendant's guilt. Fountain v. State, 71 Ga. App. 191, 30 S.E.2d 359 (1944) (decided under former Code 1933).

"Reasonable doubt" need not be defined absent request.

- "Reasonable doubt" has often been held to be a self-explanatory term, readily understandable by the average juror, for which no further definition need be given in absence of request. Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974).

Moral and reasonable certainty.

- The trial court's charge to the jury that "moral and reasonable certainty is all that can be required in a legal investigation" did not effectively permit the jury to convict defendant on a standard of proof which is less than the standard of "beyond a reasonable doubt". Marion v. State, 263 Ga. 358, 434 S.E.2d 463 (1993).

Phrase "to extent required by law" rather than "beyond reasonable doubt."

- Where jury was repeatedly instructed throughout trial court's charge that state had to prove each and every element of its case against defendant beyond a reasonable doubt, jury instruction that prosecution had to disprove defendant's claim of right "to extent required by law" instead of "beyond a reasonable doubt," did not constitute reversible error by trial court. Jackson v. State, 157 Ga. App. 581, 278 S.E.2d 156 (1981).

Language "reasonable doubt" or "without any reservations" in closing argument.

- Statement in closing argument that "unless you can honestly say without any reservations or qualifications that the state has proven the defendant guilty beyond a reasonable doubt, then you must acquit" was closer to the applicable law than the statement, "unless you can honestly say, 'yes, the defendant did it,' without any reservations or any qualifications, then you must acquit." Thus, the trial court properly prohibited defense counsel from making the latter statement when the court allowed defense counsel to make the former statement. Allen v. State, 292 Ga. App. 133, 663 S.E.2d 370 (2008), aff'd, 286 Ga. 273, 687 S.E.2d 417 (2009).

Relevant question in criminal prosecution is whether after viewing evidence in light most favorable to prosecution, any rational trier of fact could have found essential elements of crime beyond a reasonable doubt. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475 (1981).

Effect of conflicting testimony.

- While there may be conflicts in testimony of witnesses at trial, a rational trier of fact, in certain cases, may still reasonably find from evidence adduced at trial proof of defendant's guilt beyond a reasonable doubt. Hammonds v. State, 157 Ga. App. 393, 277 S.E.2d 762 (1981).

It is error to fail to charge on quantum of proof necessary to establish guilt beyond a reasonable doubt. Brock v. State, 91 Ga. App. 141, 85 S.E.2d 177 (1954).

Jury instructions.

- The charge as a whole accurately conveyed the concept of reasonable doubt to the jury. Ruff v. State, 212 Ga. App. 245, 441 S.E.2d 534 (1994).

Court need not instruct on reasonable doubt as to each proposition of case.

- According to Georgia practice, it is not the duty of the court to carve up case into different propositions and instruct jury specifically on each as to reasonable doubt, but to submit case as a whole, upon all evidence, and instruct upon subject of doubt, in appropriate terms, upon whole case. Geer v. State, 184 Ga. 805, 193 S.E. 776 (1937).

Where in criminal trial judge fully and fairly charged jury concerning law of reasonable doubt, the judge was not bound to give requested instruction, in effect, that if jury had a reasonable doubt as to existence of some particular and specially enumerated fact, or what should be the proper inference therefrom, it would be their duty to give the accused the benefit of such doubt. Pierce v. State, 66 Ga. App. 737, 19 S.E.2d 192 (1942).

Charge that reasonable doubt is actual doubt that one is conscious of is not erroneous. Hancock v. State, 196 Ga. 351, 26 S.E.2d 760 (1943).

Phrase "doubt for which you can give reason."

- In charge of court on subject of reasonable doubt, it was not error to include the phrase, "a doubt for which you can give a reason." Bryant v. State, 197 Ga. 641, 30 S.E.2d 259 (1944).

Charge that reasonable doubt is doubt with a reason, not a vague, artificial, or fictitious doubt is not erroneous in that it restricts meaning of reasonable doubt to instances in which juror finds affirmative reason. Jackson v. State, 59 Ga. App. 344, 200 S.E. 808 (1939).

Defendant need only raise reasonable doubt in minds of jury.

- Defendant is required only to raise in minds of jury a reasonable doubt as to defendant's guilt, even though state has by evidence first proved its case beyond a reasonable doubt; there is no requirement that defendant rebut case thus made by state to reasonable satisfaction of jury. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936).

Introduction that jurors should "acquit defendant" if their minds were wavering, unsettled, or unsatisfied was not misleading or unconstitutional. Tyson v. State, 217 Ga. App. 428, 457 S.E.2d 690 (1995).

Charge that defendant must rebut case made by state.

- Charge "if . . . defendant has to your reasonable satisfaction rebutted case as made by state, it would be your duty to find defendant not guilty . . ." placed burden on defendant to rebut evidence produced by state, in proof of homicide, to reasonable satisfaction of jury, whereas defendant was only required to create in minds of jury reasonable doubt as to truth of charge against defendant, and this constituted grounds for new trial. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936).

Evidence sufficient to support guilt beyond a reasonable doubt.

- Sufficient evidence was presented to sustain defendant's conviction for selling cocaine because unrefuted testimony from an undercover agent identifying the defendant as the seller of the cocaine purchased in a controlled buy conducted by the agent was corroborated by an audio tape and the testimony of other officers at the scene. Moreover, the defendant failed to present any evidence on appeal that the state failed to prove guilt beyond a reasonable doubt. Thompson v. State, 289 Ga. App. 387, 657 S.E.2d 296 (2008).

Am. Jur. 2d.

- 16B Am. Jur. 2d, Constitutional Law, § 1016. 29 Am. Jur. 2d, Evidence, §§ 185 et seq., 227 et seq.

C.J.S.

- 22A C.J.S., Criminal Law, §§ 958, 959. 23 C.J.S., Criminal Law, § 1502.

ALR.

- Propriety of instructions as to the significance of evidence concerning the defendant's good character as an element bearing upon the question of reasonable doubt, 10 A.L.R. 8; 68 A.L.R. 1068.

Degree of proof necessary in contempt proceedings, 49 A.L.R. 975.

Instruction applying rule of reasonable doubt specifically to particular matter or defense as curing instruction placing burden of proof upon defendant in that regard, 120 A.L.R. 591.

Rule of reasonable doubt as applicable to reasonable doubt on part of individual juror, 137 A.L.R. 394.

Use of term "actual doubt" in instruction on reasonable doubt, 147 A.L.R. 1046.

Presumption of innocence as evidence, 152 A.L.R. 626.

Conviction of possession of illicit drugs found in premises of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.

Burden of proof as to lack of license in criminal prosecution for carrying or possession of weapon without license, 69 A.L.R.3d 1054.

Admissibility of evidence of subsequent criminal offenses as affected by proximity as to time and place, 92 A.L.R.3d 545.