O.C.G.A. § 24-14-5 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION JURY INSTRUCTIONS General Consideration 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 Ga. App. LEXIS 909 (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 Ga. App. LEXIS 739 (1961) (decided under former Code 1933, § 38-110). 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 Ga. LEXIS 288 (1879) (decided under former law); Davis v. State, 114 Ga. 104, 39 S.E. 906, 1901 Ga. LEXIS 588 (1901) (decided under former Penal Code 1895, § 987). 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 Ga. LEXIS 157 (1911), writ of error dismissed, 223 U.S. 744, 32 S. Ct. 532, 56 L. Ed. 639, 1912 U.S. LEXIS 2510 (1912) (decided under former Penal Code 1910, § 1013). Mere doubt insufficient. - Reasonable doubt is not a vague or conjectural doubt on a mere guess. Giles v. State, 6 Ga. 276, 1849 Ga. LEXIS 40 (1849) (decided under former law); Bone v. State, 102 Ga. 387, 30 S.E. 845, 1897 Ga. LEXIS

510 (1897) (decided under former Penal Code 1895, § 987); Brantley v. State, 133 Ga. 264, 65 S.E. 426, 1909 Ga. LEXIS 205 (1909), aff’d, 217 U.S. 284, 30 S. Ct. 514, 54 L. Ed. 768, 1910 U.S. LEXIS 1961 (1910) (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 Ga. LEXIS 19 (1873) (decided under former law); Hammond v. State, 2 Ga. App. 384, 58 S.E. 509, 1907 Ga. App. LEXIS 381 (1907) (decided under former Penal Code 1895, § 987); Diggs v. State, 90 Ga. App. 853, 84 S.E.2d 611, 1954 Ga. App. LEXIS 833 (1954) (decided under former Code 1933, § 38-110); Scott v. Mayor of Athens, 111 Ga. App. 173, 140 S.E.2d 922, 1965 Ga. App. LEXIS 909 (1965) (decided under former Code 1933, § 38-110); Muckle v. State, 165 Ga. App. 873, 303 S.E.2d 54, 1983 Ga. App. LEXIS 2047 (1983) (decided under former O.C.G.A. § 24-4-5). 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 Ga. LEXIS 7 (1889) (decided under former law); Bryant v. State, 197 Ga. 641, 30 S.E.2d 259, 1944 Ga. LEXIS 314 (1944) (decided under former Code 1933, § 38-110); Carter v. State, 71 Ga. App. 626, 31 S.E.2d 666, 1944 Ga. App. LEXIS 179 (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 Ga. App. LEXIS 244 (1909) (decided under former Penal Code 1895, § 987); Dicks v. State, 155 Ga. App.

591, 271 S.E.2d 727, 1980 Ga. App. LEXIS 2691 (1980) (decided under former Code 1933, § 38-110). 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 Ga. LEXIS 510 (1897) (decided under former Penal Code 1895, § 987). 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 Ga. App. LEXIS 1276 (2001) (decided under former O.C.G.A. § 24-4-5). 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 Ga. LEXIS 897 (2001) (decided under former O.C.G.A. § 24-4-5). 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 Ga. App. LEXIS 1835 (1981) (decided under former Code 1933, 38-110). 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.

397, 137 Ga. 398, 73 S.E. 368, 1911 Ga. LEXIS 393 (1911) (decided under former Penal Code 1910, § 1013); Montgomery v. State, 202 Ga. 678, 44 S.E.2d 242, 1947 Ga. LEXIS 497 (1947) (decided under former Code 1933, § 38-110); Blakeley v. State, 78 Ga. App. 516, 51 S.E.2d 598, 1949 Ga. App. LEXIS 918 (1949) (decided under former Code 1933, § 38-110); Life Ins. Co. v. Lawler, 211 Ga. 246, 85 S.E.2d 1, 1954 Ga. LEXIS 538 (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 Ga. LEXIS 524 (1985) (decided under former O.C.G.A. § 24-4-5). 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 Ga. App. LEXIS 2204 (1981) (decided under former O.C.G.A. § 24-4-5). Every element of crime must be proved beyond a reasonable doubt. Gosha v. State, 56 Ga. 36, 1876 Ga. LEXIS 198 (1876), overruled on other grounds, Worthen v. State, 304 Ga. 862, 823 S.E.2d 291, 2019 Ga. LEXIS 22 (2019) (venue) (decided under former law); Bell v. State, 91 Ga. 15, 16 S.E. 207, 1892 Ga. LEXIS 485 (1892) (capacity to commit crime) (decided under former law); Barnes v. State, 113 Ga. 716, 39 S.E. 488, 1901 Ga. LEXIS 361 (1901) (grade of offense) (decided under former Penal Code 1895, § 987); Glover v. State, 114 Ga. 828, 40 S.E. 998, 1902 Ga. LEXIS 798 (1902) (identity of defendant) (decided under former Penal Code 1895, § 987); Green v. State, 4 Ga. App. 260, 61 S.E. 234, 1908 Ga. App. LEXIS 257 (1908) (venue) (decided under former Penal Code 1895, § 987); Simpson v. State, 12 Ga. App. 292, 77 S.E. 105, 1913 Ga. App. LEXIS 543 (1913) (grade of offense) (decided under former Penal Code

General Consideration (Cont’d) 1910, § 1013); Davis v. State, 46 Ga. App. 174, 46 Ga. App. 194, 167 S.E. 205, 1932 Ga. App. LEXIS 96 (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. 381, 183 Ga. 881, 189 S.E. 910, 1937 Ga. LEXIS 420 (1937) (decided under former Code 1933, § 38-110); Carter v. State, 57 Ga. App. 180, 194 S.E. 842, 1938 Ga. App. LEXIS 515 (1938) (decided under former Code 1933, § 38-110); Dominick v. State, 66 Ga. App. 531, 18 S.E.2d 502, 1942 Ga. App. LEXIS 207 (1942) (decided under former Code 1933, § 38-110); Diggs v. State, 90 Ga. App. 853, 84 S.E.2d 611, 1954 Ga. App. LEXIS 833 (1954) (decided under former Code 1933, § 38-110); Crane v. State, 123 Ga. App. 226, 180 S.E.2d 289, 1971 Ga. App. LEXIS 1173 (1971) (decided under former Code 1933, § 38-110); Lewis v. State, 149 Ga. App. 181, 254 S.E.2d 142, 1979 Ga. App. LEXIS 1778 (1979) (decided under former Code 1933, § 38-110); Barfield v. State, 160 Ga. App. 228, 286 S.E.2d 516, 1981 Ga. App. LEXIS 3036 (1981) (decided under former O.C.G.A. § 24-4-5). 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 Ga. App. LEXIS 2666 (1981) (decided under former O.C.G.A. § 24-4-5). Circumstantial evidence may outweigh positive evidence in probative value. Stephens v. State, 127 Ga. App. 416, 193 S.E.2d 870, 1972 Ga. App. LEXIS 905 (1972) (decided under former Code 1933, § 38-110). 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 Ga. App. LEXIS 75 (1913) (decided under former Penal Code 1910, § 1013); Rutland v. State, 46 Ga. App. 417, 167 S.E. 705, 1933 Ga. App. LEXIS 80 (1933) (decided under former Code 1933, § 38-110); Barnett v. State, 153 Ga. App. 430, 265 S.E.2d 348, 1980 Ga. App. LEXIS 1837 (1980) (decided under former Code 1933, § 38-110); Johnson v. State, 159 Ga. App. 497, 283 S.E.2d 711, 1981 Ga. App. LEXIS 2666 (1981) (decided under former Code 1933, § 38-107). Evidence found sufficient to support conviction in the following cases. - See Johnson v. State, 79 Ga. App. 210, 53 S.E.2d 498, 1949 Ga. App. LEXIS 620 (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 Ga. App. LEXIS 2748 (1979) (rape) (decided under former Code 1933, § 38-110); Cosby v. State, 151 Ga. App. 676, 261 S.E.2d 424, 1979 Ga. App. LEXIS 2744 (1979) (burglary) (decided under former Code 1933, § 38-110). Jury Instructions 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 Ga. App. LEXIS 3338 (1983), aff’d, 252 Ga. 79, 310 S.E.2d 912, 1984 Ga. LEXIS 585 (1984) (decided under former O.C.G.A. § 24-4-5). 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 Ga. LEXIS 160 (1879) (decided under former law); Campbell v. State, 100 Ga. 267, 28 S.E. 71, 1897 Ga. LEXIS 39 (1897) (decided under former Penal Code 1895, § 987); Wimberly v. State, 12 Ga. App.

540, 77 S.E. 879, 1913 Ga. App. LEXIS 630 (1913) (decided under former Penal Code 1910, § 1013). 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 Ga. App. LEXIS 701 (1912) (decided under former Penal Code 1910, § 1013). 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 Ga. App. LEXIS 678 (1925) (decided under former Penal Code 1910, § 1013); McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633, 1948 Ga. App. LEXIS 693 (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 Ga. App. LEXIS 1810 (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 Ga. App. LEXIS 645 (1915) (decided under former Penal Code 1910, § 1013); Bell v. State, 148 Ga. 352, 96 S.E. 861, 1918 Ga. LEXIS 337 (1918) (decided under former Penal Code 1910, § 1013); Floyd v. State, 58 Ga. App. 867, 200 S.E. 207, 1938 Ga. App. LEXIS 160 (1938) (decided under former Code 1933, § 38-110); Fountain v. State, 71 Ga. App. 191, 30 S.E.2d 359, 1944 Ga. App. LEXIS 312 (1944) (decided under former Code 1933, § 38-110); Brock v. State, 91 Ga. App. 141, 85 S.E.2d 177, 1954 Ga. App. LEXIS 883 (1954) (decided under former Code 1933, § 38-110); Lingo v. State, 96 Ga. App. 379, 100 S.E.2d 116, 1957 Ga. App. LEXIS 586 (1957) (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 Ga. App. LEXIS 87 (1943) (decided under former Code 1933, § 38-110); Whitus v. State, 222 Ga. 103, 149 S.E.2d 130, 1966 Ga. LEXIS 408 (1966), rev’d, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599, 1967 U.S. LEXIS 2452 (1967) (decided under former Code 1933, § 38-110); Armour v. State, 154 Ga. App. 740, 270 S.E.2d 22, 1980 Ga. App. LEXIS 2368 (1980) (decided under former Code 1933, § 38-110); Mosley v. State, 157 Ga. App. 578, 278 S.E.2d 154, 1981 Ga. App. LEXIS 1920 (1981) (decided under former O.C.G.A. § 24-4-5); Davis v. State, 159 Ga. App. 197, 283 S.E.2d 17, 1981 Ga. App. LEXIS 2546 (1981) (decided under former O.C.G.A. § 24-4-5); Painter v. State, 159 Ga. App. 479, 283 S.E.2d 695, 1981 Ga. App. LEXIS 2658 (1981) (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 Ga. App. LEXIS 3036 (1981) (decided under former O.C.G.A. § 24-4-5). Instructions not error in the following cases. - See Smith v. State, 34 Ga. App. 779, 131 S.E. 923, 1926 Ga. App. LEXIS 24 (1926) (decided under former Penal Code 1910, § 1013); Lucas v. State, 48 Ga. App. 42, 171 S.E. 850, 1933 Ga. App. LEXIS 450 (1933) (decided under former Code 1933, § 38-110); Pound v. State, 180 Ga. 83, 178 S.E. 291, 1935 Ga. LEXIS 179 (1935) (decided under former Code 1933, § 38-110); Stowe v. State, 51 Ga. App. 726, 181 S.E. 419, 1935 Ga. App. LEXIS 450 (1935) (decided under former Code 1933, § 38-110); Pulliam v. State, 196 Ga. 782, 28 S.E.2d 139, 1943 Ga. LEXIS 449 (1943) (decided under former Code 1933, § 38-110); Rogers v. State, 72 Ga. App. 791, 35 S.E.2d 473, 1945 Ga. App. LEXIS 701 (1945) (decided under former Code 1933, § 38-110); Johnson v. State, 209 Ga. 333, 72 S.E.2d 291, 1952 Ga. LEXIS 478 (1952) (decided under former Code 1933, § 38-110); Dicks v. State, 155 Ga. App. 591, 271 S.E.2d 727, 1980 Ga. App. LEXIS 2691 (1980) (decided under former Code 1933, § 38-110); Jackson

Jury Instructions (Cont’d) v. State, 157 Ga. App. 581, 278 S.E.2d 156, 1981 Ga. App. LEXIS 1923 (1981) (decided under former O.C.G.A. § 24-4-5). 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 Ga. LEXIS 73 (1926) (decided under former Penal Code 1910, § 1013).

OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. - In light of the similarity of the statutory provisions, opinions 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).

RESEARCH REFERENCES 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 pos-

sessing 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.