Bankston v. State

• Decision Date: 30 April 1979
• Docket Number: No. 57587,57587
• Citation: 256 S.E.2d 122,149 Ga.App. 759
• Parties: BANKSTON v. The STATE.
• Court: Georgia Court of Appeals

Page 122

256 S.E.2d 122

149 Ga.App. 759

BANKSTON v. The STATE.

No. 57587.

Court of Appeals of Georgia.

Submitted April 9, 1979.

Decided April 30, 1979.

Stephen M. Friedberg, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

The appellant appeals from his conviction of aggravated assault and kidnapping. We affirm.

1. Appellant raises the general grounds in his first enumeration of error. The evidence shows, and the jury was authorized to find, that the appellant accosted the victim with a knife, forced his way into her car and compelled her at knifepoint to drive several blocks before she escaped. In passing upon the general grounds enumerated on appeal, this court can determine only the sufficiency of the evidence to support the verdict. The weight of the evidence is for the jury. Raymond v. State, 146 Ga.App. 452, 246 S.E.2d 461 (1978). After the verdict, the trial judge overruled appellant's motion for new trial which included the general grounds. ". . . (A)fter the verdict is approved by the trial court, the evidence must be construed so as to uphold the verdict even where there are discrepancies." Bradham v. State, 148 Ga.App. 89(1), 250 S.E.2d 801 (1978). We find that the evidence was sufficient to authorize the verdict of guilty in this case. Carroll v. State, 143 Ga.App. 230(1), 237 S.E.2d 703 (1977).

2. The jury was charged on the defense of alibi in language substantially similar to that approved in Hunter v. State, 135 Ga.App. 172(1), 217 S.E.2d 172 (1975). Appellant contends however, that it was error to fail to include in that charge words to the following effect: "If the defense of alibi is established to the reasonable satisfaction of the jury, it would be your duty to acquit." While there are cases which hold that inclusion of such language in a charge on alibi is not erroneous (Thornton v. State, 226 Ga. 837(3), 178 S.E.2d 193 (1970); Smith v. Hightower, 227 Ga. 144, 179 S.E.2d 242 (1971); Trimble v. State, 229 Ga. 399, 191 S.E.2d 857 (1972)), it is now clear that such a charge, if given, erroneously shifts the burden of proof to the defendant in a criminal case. Patterson v. State, 233 Ga. 724(7), 213 S.E.2d 612 (1975). Thus this enumeration of error is without merit. See generally Jackson v. State, 141 Ga.App. 567(1), 234 S.E.2d 94 (1977).

3. After the jury had deliberated for several hours without reaching a verdict, the court gave the so-called "dynamite" or "Allen" charge. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. The appellant urges that the charge was erroneous because it did not include the statement that no juror is required to surrender his or her opinion because of the honest different opinion with another juror or other jurors, for the purpose of reaching a unanimous verdict. Greeson v. State, 138 Ga.App. 572(3), 226 S.E.2d 769 (1976).

However, the holding in Greeson that the "Allen" charge must include cautionary words to the jurors not to surrender their conscientious convictions has been reversed by the Supreme Court. State v. Greeson, 237 Ga. 193, 227 S.E.2d 324 (1976). See Greeson v. State, 139 Ga.App. 767, 229 S.E.2d 547 (1976). Therefore, as the charge in the...