O.C.G.A. § 16-2-5 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions decided under former Code 1933, § 26-202, as it read prior to revision of the title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section. Intent manifested by circumstances connected with perpetration of offense. - Every crime consists in union or joint operation of act and intention. Sometimes intention can be proved, sometimes it can only be inferred or presumed; and general rule is that intention will be manifested by circumstances connected with perpetration of offense. Marzetta v. Steinman, 117 Ga. App. 471, 160 S.E.2d 590 (1968) (decided under former Code 1933, § 26-202). Jury instruction quoting section held unconstitutional. - Because a jury instruction which quoted O.C.G.A. § 16-2-5 in its entirety could have been understood by a reasonable juror as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent, and because the charge as a whole did not explain or cure the error, the jury charge violates the Due Process Clause’s requirement that the state prove every element of a criminal offense beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985). Inaccuracies in charge which do not mislead or obscure meaning do not require new trial. Williams v. State, 159 Ga. App. 865, 285 S.E.2d 597 (1981). It is not necessary that charge to jury be in exact language of Code. Parks v. State, 234 Ga. 579, 216 S.E.2d 804 (1975). Charge in accordance with statute does not impermissibly shift burden of persuasion. Huffman v. State, 153 Ga. App. 203, 265 S.E.2d 603 (1980). Charge in language of statute is not burden shifting. Simpson v. State, 159 Ga. App. 235, 283 S.E.2d 91 (1981). No conclusive presumption of intent is charged when the jury is also adequately instructed that the presumption may be rebutted. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983).

Failure to charge in homicide case that presumption is rebuttable. - In charging the jury in a homicide case under statute, it is reversible error not to tell jury that presumption created may be rebutted. Lane v. State, 153 Ga. App. 101, 264 S.E.2d 569 (1980). Failure to include statutory language that presumption may be rebutted is not error. Wilson v. State, 233 Ga. 479, 211 S.E.2d 757 (1975). But see Lane v. State, 153 Ga. App. 101, 264 S.E.2d 569 (1980). Combining former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and 16-2-6) in charge creates permissive presumption. - Permissive presumption such as created by combining former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and 16-2-6) in charge allowed, put did not require, trier of fact to infer elemental fact from proof by prosecutor of basic one and that placed no burden of any kind on the defendant. Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979). Permissive presumptions were not inherently unconstitutional, but were to be tested by the rational connection test under which the court asks if ultimate fact to be presumed was more likely than not to flow from the proved fact; and when former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and 16-2-6) were combined in charge to create such presumption, the presumption was rational, as obviously it was more likely than not that a normal defendant intended the natural and probable consequences of acts. Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979). Instruction that recent possession of stolen property may establish criminal intent. - In prosecution for receiving stolen property, judge’s instruction to jury ‘‘that recent possession of stolen property without satisfactory explanation is sufficient to establish criminal intent’’ was error, despite proper instruction on burden of proving criminal intent, and required reversal. Williams v. State, 159 Ga. App. 865, 285 S.E.2d 597 (1981).

Finding of specific intent to cause harm may not be based on the rebuttable presumption that a person of sound mind and discretion is presumed to intend the natural and probable consequences of acts. Wal-Mart Stores, Inc. v. Johnson, 249 Ga. App. 84, 547 S.E.2d 320 (2001), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008). Rebutting presumption imposed by statute in civil matters. - Plaintiffs’ stated cognizable claims against a bishop arising out of a breach of fiduciary duty as evidence was presented that the bishop abused the bishop’s position of spiritual authority to coerce or seduce the married plaintiff female into consenting to a prolonged sexual relationship with the bishop. Plaintiffs also put forward evidence of the bishop’s charismatic nature and the bishop’s ability to control and coerce using the bishop’s spiritual authority, all of which is evidence in rebuttal of the presumptions of ‘‘sound mind and discretion’’ relied upon by the trial court. Brewer v. Paulk, 296 Ga. App. 26, 673 S.E.2d 545 (2009). Cited in Bloodworth v. State, 128 Ga. App. 657, 197 S.E.2d 423 (1973); West v. State, 129 Ga. App. 271, 199 S.E.2d 354 (1973); Kramer v. State, 230 Ga. 855, 199

S.E.2d 805 (1973); Spencer v. State, 231 Ga. 705, 203 S.E.2d 856 (1974); Bentley v. State, 131 Ga. App. 425, 205 S.E.2d 904 (1974); Ford v. State, 232 Ga. 511, 207 S.E.2d 494 (1974); Nunnally v. State, 235 Ga. 693, 221 S.E.2d 547 (1975); Smith v. State, 137 Ga. App. 576, 224 S.E.2d 534 (1976); Bradley v. State, 137 Ga. App. 670, 224 S.E.2d 778 (1976); Gatlin v. State, 236 Ga. 707, 225 S.E.2d 224 (1976); Williamson v. State, 138 Ga. App. 306, 226 S.E.2d 102 (1976); Scott v. State, 239 Ga. 46, 235 S.E.2d 522 (1977); Washington v. State, 142 Ga. App. 651, 236 S.E.2d 837 (1977); Lunsford v. State, 145 Ga. App. 446, 243 S.E.2d 655 (1978); Harris v. State, 145 Ga. App. 675, 244 S.E.2d 620 (1978); Borgh v. State, 146 Ga. App. 649, 247 S.E.2d 137 (1978); Tucker v. State, 245 Ga. 68, 263 S.E.2d 109 (1980); Russell v. State, 152 Ga. App. 693, 263 S.E.2d 689 (1979); Moses v. State, 245 Ga. 180, 263 S.E.2d 916 (1980); Peacock v. State, 154 Ga. App. 201, 267 S.E.2d 807 (1980); Thrift-Mart, Inc. v. Commercial Union Assurance Cos., 154 Ga. App. 344, 268 S.E.2d 397 (1980); Jackson v. State, 157 Ga. App. 580, 278 S.E.2d 152 (1981); Whitsell v. State, 179 Ga. App. 358, 346 S.E.2d 130 (1986); Adams v. State, 293 Ga. App. 377, 667 S.E.2d 186 (2008).

RESEARCH REFERENCES Am. Jur. 2d. - 29 Am. Jur. 2d, Evidence, § 281. C.J.S. - 22 C.J.S., Criminal Law: Substantive Principles, § 39.

ALR. - Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.