Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Penal Code 1895, § 987, former Penal Code 1910, § 1013, former Code 1933, § 38-110, and former O.C.G.A. § 24-4-5 are included in the annotations for this Code section.

Statute applies to recorder's courts. Scott v. Mayor of Athens, 111 Ga. App. 173, 140 S.E.2d 922 (1965) (decided under former Code 1933, § 38-110).

Preponderance of evidence standard inapplicable.

- Law of the preponderance of evidence is not applicable in criminal cases. McDonald v. State, 104 Ga. App. 578, 122 S.E.2d 145 (1961).

Reasonable and moral certainty.

- Reasonable doubt is such as leaves the mind in an uncertain and wavering condition where it is impossible to say with reasonable and moral certainty that the accused is guilty. Dumas v. State, 63 Ga. 600 (1879) (decided under former law); Davis v. State, 114 Ga. 104, 39 S.E. 906 (1901);.

Mathematical certainty not required and cannot be attained in a legal investigation; moral and reasonable certainty is all that the law requires. McNaughton v. State, 136 Ga. 600, 71 S.E. 1038 (1911), appeal dismissed, 223 U.S. 744, 32 S. Ct. 532, 56 L. Ed. 639 (1912).

Mere doubt insufficient.

- Reasonable doubt is not a vague or conjectural doubt on a mere guess. Giles v. State, 6 Ga. 276 (1849) (decided under former law); Bone v. State, 102 Ga. 387, 390 S.E. 845 (1897); Brantley v. State, 133 Ga. 264, 65 S.E. 426 (1909) (decided under former Penal Code 1895, § 987);.

Bare suspicion not sufficient.

- Bare suspicion of guilt is not sufficient to authorize a conviction. Oneil v. State, 48 Ga. 66 (1873) (decided under former law); Hammond v. State, 2 Ga. App. 384, 58 S.E. 509 (1907); Diggs v. State, 90 Ga. App. 853, 84 S.E.2d 611 (1954) (decided under former Penal Code 1895, § 987); Scott v. Mayor of Athens, 111 Ga. App. 173, 140 S.E.2d 922 (1965); Muckle v. State, 165 Ga. App. 873, 303 S.E.2d 54 (1983) (decided under former Code 1933, § 38-110);(decided under former Code 1933, § 38-110);.

Reason for doubt.

- In the charge of the court on the subject of reasonable doubt, it was not error to include the phrase, "a doubt for which you can give a reason." Vann v. State, 83 Ga. 44, 9 S.E. 945 (1889) (decided under former law); Bryant v. State, 197 Ga. 641, 30 S.E.2d 259 (1944); Carter v. State, 71 Ga. App. 626, 31 S.E.2d 666 (1944) (decided under former Code 1933, § 38-110);.

Moral certainty equated with reasonable doubt.

- Phrases, "to a moral and reasonable certainty" and "beyond a reasonable doubt," and applied to the quality of proof in a case, are identical in meaning. Austin v. State, 6 Ga. App. 211, 64 S.E. 670 (1909) (decided under former Penal Code 1895, § 987); Dicks v. State, 155 Ga. App. 591, 271 S.E.2d 727 (1980);.

Moral certainty equated with absolute certainty.

- Statute requires proof to a moral certainty, as distinguished from an absolute certainty. As applied to a judicial trial for a crime, the two phrases are synonymous and equivalent; each signifies such proof as satisfies the judgment and consciences of the jury, as reasonable men and applying their reason to the evidence before them, that the crime charged has been committed by the defendant, and so satisfies them as to leave no other reasonable conclusion possible. Bone v. State, 102 Ga. 387, 30 S.E. 845 (1897).

Reversible error despite defendant's failure to object to the charge.

- After trial court gave the jury the suggested pattern charge on reasonable doubt the court summarized the charge by saying "In other words, if you honestly believe he's guilty, convict him. If you honestly believe he is not guilty, find him not guilty." Jones v. State, 252 Ga. App. 332, 556 S.E.2d 238 (2001).

Trial court's instruction that "neither does :reasonable doubt] mean a possibility that the defendant may be innocent" violates defendant's state and federal due process rights. Mangum v. State, 274 Ga. 573, 555 S.E.2d 451 (2001).

Conflicts in testimony do not preclude finding of guilt.

- While there may be conflicts in the testimony of witnesses at trial, a rational trier of fact, in certain cases, may still reasonably find from the 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).

Quantum of proof.

- Burden of proof is on the state in all criminal cases to show the defendant's guilt to a moral and reasonable certainty and beyond a moral and reasonable doubt. Walker v. State, 137 Ga. 398, 73 S.E. 368 (1912) (decided under former Penal Code 1910, § 1013); Montgomery v. State, 202 Ga. 678, 44 S.E.2d 242 (1947); Blakeley v. State, 78 Ga. App. 516, 51 S.E.2d 598 (1949) (decided under former Code 1933, § 38-110); Life Ins. Co. v. Lawler, 211 Ga. 246, 85 S.E.2d 1 (1954);(decided under former Code 1933, § 38-110);.

Proof beyond reasonable doubt required in criminal contempt prosecution.

- It is a denial of a defendant's right of due process of law under the federal and state constitutions and former O.C.G.A. § 24-4-5 to fail to require proof beyond a reasonable doubt in a criminal contempt prosecution because the result of such a conviction is to deny the defendant's liberty and the levy of a penal fine. In re Crane, 253 Ga. 667, 324 S.E.2d 443 (1985).

It is not necessary for state to prove that it was impossible for offenses charged to have been committed by anybody else. Perry v. State, 158 Ga. App. 349, 280 S.E.2d 390 (1981).

Every element of crime must be proved beyond a reasonable doubt. Gosha v. State, 56 Ga. 36 (1876) (venue) (decided under former law); Bell v. State, 91 Ga. 15, 16 S.E. 207 (1892) (capacity to commit crime) (decided under former law); Barnes v. State, 113 Ga. 716, 39 S.E. 488 (1901) (grade of offense) (decided under former Penal Code 1895, § 987); Glover v. State, 114 Ga. 828, 40 S.E. 998 (1902) (identity of defendant) (decided under former Penal Code 1895, § 987); Green v. State, 4 Ga. App. 260, 61 S.E. 234 (1908) (venue) (decided under former Penal Code 1895, § 987); Simpson v. State, 12 Ga. App. 292, 77 S.E. 105 (1913) (grade of offense) (decided under former Penal Code 1910, § 1013); Davis v. State, 46 Ga. App. 174, 167 S.E. 205 (1932) (possession of stolen article) (decided under former Penal Code 1910, § 1013).

Circumstantial evidence sufficient to convict if the evidence is consistent with the hypothesis of the guilt of the defendant and excludes every other reasonable hypothesis. Graham v. State, 183 Ga. 881, 189 S.E. 910 (1937) (decided under former Code 1933, § 38-110); Carter v. State, 57 Ga. App. 180, 194 S.E. 842 (1938); Dominick v. State, 66 Ga. App. 531, 18 S.E.2d 502 (1942) (decided under former Code 1933, § 38-110); Diggs v. State, 90 Ga. App. 853, 84 S.E.2d 611 (1954); Crane v. State, 123 Ga. App. 226, 180 S.E.2d 289 (1971) (decided under former Code 1933, § 38-110); Lewis v. State, 149 Ga. App. 181, 254 S.E.2d 142 (1979); Barfield v. State, 160 Ga. App. 228, 286 S.E.2d 516 (1981) (decided under former Code 1933, § 38-110);(decided under former Code 1933, § 38-110);(decided under former Code 1933, § 38-110);.

To sustain a conviction on circumstantial evidence only, the state must prove facts that are not only consistent with the hypothesis of the guilt of the accused, but the facts proved must exclude every other reasonable hypothesis. Johnson v. State, 159 Ga. App. 497, 283 S.E.2d 711 (1981).

Circumstantial evidence may outweigh positive evidence in probative value. Stephens v. State, 127 Ga. App. 416, 193 S.E.2d 870 (1972).

Two theories presented.

- When the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence. Davis v. State, 13 Ga. App. 142, 78 S.E. 866 (1913) (decided under former Penal Code 1910, § 1013); Rutland v. State, 46 Ga. App. 417, 167 S.E. 705 (1933); Barnett v. State, 153 Ga. App. 430, 265 S.E.2d 348 (1980) (decided under former Code 1933, § 38-110); Johnson v. State, 159 Ga. App. 497, 283 S.E.2d 711 (1981);(decided under former Code 1933, § 38-110);.

An instruction that the existence of two equal theories, guilt or innocence, requires acquittal is not error unless the evidence relied on by the state is wholly circumstantial, in which case the word "equal" should not appear in the instruction. Carpenter v. State, 167 Ga. App. 634, 307 S.E.2d 19 (1983), aff'd, 252 Ga. 79, 310 S.E.2d 912 (1984).

Presumption of innocence.

- Every accused person has a presumption of innocence in the accused's favor, and the accused cannot be convicted until this evidence is overcome and the accused's guilt established beyond all reasonable doubt. Smith v. State, 63 Ga. 168 (1879) (decided under former law); Campbell v. State, 100 Ga. 267, 28 S.E. 71 (1897); Wimberly v. State, 12 Ga. App. 540, 77 S.E. 879 (1913) (decided under former Penal Code 1895, § 987);.

Reasonable doubt must be charged.

- In every criminal case the court should charge the jury that to authorize conviction, guilt must be proved "beyond a reasonable doubt"; and, unless the evidence demands the verdict rendered, the failure to do so will be reversible error. Norman v. State, 10 Ga. App. 802, 74 S.E. 428 (1912).

Not error to charge this statute.

- It is never error for the trial court to charge the jury on the subject of reasonable doubt in the language of this statute. Thomas v. State, 33 Ga. App. 680, 127 S.E. 891 (1925) (decided under former Penal Code 1910, § 1013); McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633 (1948);(decided under former Code 1933, § 38-110).

Charging entire statute unnecessary.

- When the charge given was not the entire charge on reasonable doubt as found in this statute, if the charge was fair and did not shift any burden to the defendant the charge is approved. Jones v. State, 139 Ga. App. 366, 228 S.E.2d 387 (1976) (decided under former Code 1933, § 38-110).

Definition of reasonable doubt unnecessary.

- Court need not attempt to define reasonable doubt. Jordan v. State, 16 Ga. App. 393, 85 S.E. 455 (1915) (decided under former Penal Code 1910, § 1013); Bell v. State, 148 Ga. 352, 96 S.E. 861 (1918); Floyd v. State, 58 Ga. App. 867, 200 S.E. 207 (1938) (decided under former Penal Code 1910, § 1013); Fountain v. State, 71 Ga. App. 191, 30 S.E.2d 359 (1944); Brock v. State, 91 Ga. App. 141, 85 S.E.2d 177 (1954) (decided under former Code 1933, § 38-110); Lingo v. State, 96 Ga. App. 379, 100 S.E.2d 116 (1957);(decided under former Code 1933, § 38-110);(decided under former Code 1933, § 38-110);.

Province of jury.

- It is the province of the jury to decide the weight and credit to be given the evidence. Fortson v. State, 69 Ga. App. 378, 25 S.E.2d 820 (1943) (decided under former Code 1933, § 38-110); Whitus v. State, 222 Ga. 103, 149 S.E.2d 130 (1966); Armour v. State, 154 Ga. App. 740, 270 S.E.2d 22 (1980) (decided under former Code 1933, § 38-110); Mosley v. State, 157 Ga. App. 578, 278 S.E.2d 154 (1981); Davis v. State, 159 Ga. App. 197, 283 S.E.2d 17 (1981) (decided under former Code 1933, § 38-110); Painter v. State, 159 Ga. App. 479, 283 S.E.2d 695 (1981);(decided under former O.C.G.A. § 24-4-5);(decided under former O.C.G.A. § 24-4-5);.

Whether every reasonable hypothesis except that of guilt of the defendant has been excluded is question for jury, when the jury is properly instructed. Barfield v. State, 160 Ga. App. 228, 286 S.E.2d 516 (1981).

Instructions not error in the following cases.

- See Smith v. State, 34 Ga. App. 779, 131 S.E. 923 (1926) (decided under former Penal Code 1910, § 1013); Lucas v. State, 48 Ga. App. 42, 171 S.E. 850 (1933); Pound v. State, 180 Ga. 83, 178 S.E. 291 (1935) (decided under former Code 1933, § 38-110); Stowe v. State, 51 Ga. App. 726, 181 S.E. 419 (1935); Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139 (1943) (decided under former Code 1933, § 38-110); Rogers v. State, 72 Ga. App. 791, 35 S.E.2d 473 (1945); Johnson v. State, 209 Ga. 333, 72 S.E.2d 291 (1952) (decided under former Code 1933, § 38-110); Dicks v. State, 155 Ga. App. 591, 271 S.E.2d 727 (1980); Jackson v. State, 157 Ga. App. 581, 278 S.E.2d 156 (1981) (decided under former Code 1933, § 38-110);(decided under former Code 1933, § 38-110);(decided under former Code 1933, § 38-110);(decided under former Code 1933, § 38-110);.

Erroneous charge.

- Following charge was held inaccurate: "Whether dependent upon positive or circumstantial evidence, the true question in all criminal cases is not that the conclusion to which the evidence points may be false, but whether or not the state has satisfied the minds and consciences of the jury beyond a reasonable doubt of the guilt of the accused." King v. State, 163 Ga. 313, 136 S.E. 154 (1926).

Evidence found sufficient to support conviction in the following cases.

- See Johnson v. State, 79 Ga. App. 210, 53 S.E.2d 498 (1949) (illegal possession of whiskey) (decided under former Code 1933, § 38-110); Gray v. State, 151 Ga. App. 684, 261 S.E.2d 402 (1979) (rape) (decided under former Code 1933, § 38-110); Cosby v. State, 151 Ga. App. 676, 261 S.E.2d 424 (1979) (burglary) (decided under former Code 1933, § 38-110).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions issued under former Code 1933, § 38-110, which was repealed and succeeded by provisions in this Code section, are included in the annotations for this Code section.

Statute inapplicable to contempt case.

- Criminal contempt is not strictly speaking a "criminal case" and as such does not require proof beyond a reasonable doubt as required for other criminal cases. 1979 Op. Att'y Gen. No. 79-36 (decided under former Code 1933, § 38-110).

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, § 185. 29A Am. Jur. 2d, Evidence, § 1414.

ALR.

- Admissibility and probative force on issue as to mental condition, of evidence that one had been adjudged incompetent or insane, or had been confined in insane asylum, 7 A.L.R. 568; 68 A.L.R. 1309.

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.

Duty to charge as to reasonable doubt as between different degrees of crime of included offenses, 20 A.L.R. 1258.

Instruction on circumstantial evidence in criminal case, 89 A.L.R. 1379.

Admissibility and weight on question of materiality of misrepresentation, of testimony of officers or employees of insurer to effect that application would not have been accepted but for the misrepresentation, or that there was a rule or policy to reject risks of the kind that would have been shown but for the misrepresentation, 115 A.L.R. 100.

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.

Evidence of acquisition or possession of money, source of which is not traced, as admissible against defendant in criminal case, 123 A.L.R. 119; 91 A.L.R.2d 1046.

Reasonable doubt rule as applicable to evidence in civil case of facts amounting to felony or misdemeanor, 124 A.L.R. 1378.

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

Admissibility, in prosecution for burglary, of evidence that defendant, after alleged burglary, was in possession of burglarious tools and implements, 143 A.L.R. 1199.

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

Conviction of criminal offense without evidence as denial of due process of law, 80 A.L.R.2d 1362.

Construction of statute or ordinance making it an offense to possess or have alcoholic beverages in opened package in motor vehicle, 35 A.L.R.3d 1418.

Necessity of proving venue or territorial jurisdiction of criminal offense beyond reasonable doubt, 67 A.L.R.3d 988.

Instructions to jury: sympathy to accused as appropriate factor in jury consideration, 72 A.L.R.3d 842.

Sufficiency of prosecution proof that substance defendant is charged with possessing or selling, or otherwise unlawfully dealing in, is marijuana, 75 A.L.R.3d 717.

Admissibility of DNA identification evidence, 84 A.L.R.4th 313.