Bearden v. State, 64261
| Decision Date | 10 September 1982 |
| Docket Number | No. 64261,64261 |
| Citation | 294 S.E.2d 667,163 Ga.App. 434 |
| Parties | BEARDEN v. The STATE. |
| Court | Georgia Court of Appeals |
Phillip B. Ham, Forsyth, for appellant.
E. Byron Smith, Dist. Atty., W. Hal Craig, Asst. Dist. Atty., Barnesville, for appellee.
Defendant was indicted for the offense of cruelty to children and convicted of the lesser included offense of simple battery. Defendant's motion for new trial was denied, and defendant appeals enumerating as error the trial court's refusal to give certain instructions in its charge to the jury. Held:
1. Defendant's enumerations of error numbers 1, 2 and 6 each contend that the trial court should have given in charge to the jury Code Ann. § 26-901(c) (Ga.L.1968, pp. 1249, 1272) or some paraphrase of same. This Code section provides for a defense of justification when a person's conduct is reasonable discipline of a minor by a person in loco parentis. In the case sub judice there was no evidence authorizing the charge of Code Ann. § 26-901(c), supra, in that the injuries sustained by the victim (defendant's stepchild), if occasioned by defendant's acts, could not be determined to have been reasonable discipline. The state's evidence shows that the victim was a five-year-old female child upon whom bruises were visible on about 75% of the face and neck and 25% of the body. The trial court committed no error in refusing to charge Code Ann. § 26-901(c), supra. Ellis v. State, 137 Ga.App. 834, 838(5), 224 S.E.2d 799 2. Defendant's enumeration of error No. 3 complains of the failure to give a requested charge that "where 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." However, the evidence as to the two theories, guilt or innocence, in the case sub judice, was not of such equality that the theory of innocence had to be accepted. See Nolen v. State, 124 Ga.App. 593, 594-597, 184 S.E.2d 674, and cases cited. The request was abstractly correct. However, the jury was fully charged on the burden of the state to show beyond a reasonable doubt the guilt of the defendant and that if the jury should find any such doubt as to the defendant's guilt they should acquit. See in this connection Newberry v. State, 126 Ga.App. 81, 189 S.E.2d 891.
3. Defendant's enumeration of error No. 4 complains of the trial court's refusal to give the requested charge that when circumstantial evidence supports more than one theory, one consistent with guilt and one with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove defendant's guilt beyond a reasonable doubt. Defendant contends that this request to charge is supported by Code § 38-109 which Code section was contained in the trial court's charge to the jury. Only when the evidence is wholly circumstantial is the substance of Code § 38-109 required to be given in the charge. Here there was direct evidence, as well as circumstantial, and there was no such equality of the theories of guilt or innocence as to require such charge. See Nolen v. State, 124...
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McDaniel v. State
...then latched the box closed for 30 minutes, while the child yelled out that he was hot and could not breathe); Bearden v. State , 163 Ga. App. 434, 438 (5), 294 S.E.2d 667 (1982) (explaining that the trial judge committed no error in failing to charge on parental discipline, because even if......
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Carpenter v. State
...correct only when the evidence relied on by the state is wholly circumstantial. OCGA § 24-4-6 (Code Ann. § 38-109); Bearden v. State, 163 Ga.App. 434, 294 S.E.2d 667 (1982); Griffis v. State, 163 Ga.App. 491, 295 S.E.2d 197 (1982); Nolen v. State, 124 Ga.App. 593, 184 S.E.2d 674 (1971). Com......
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Carlton v. State, A96A2048
...on the totality of the evidence presented by the State, no issue of accident was raised by the evidence. See Bearden v. State, 163 Ga.App. 434, 435(4), 294 S.E.2d 667 (1982). Because "[t]he court is not obligated to give a charge not adjusted to the facts," the court did not err in failing ......
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Grubbs v. State, 66197
...charge on a defense unsupported by the evidence. See Pearson v. State, 164 Ga.App. 337, 338, 297 S.E.2d 98; Bearden v. State, 163 Ga.App. 434, 435(4), 294 S.E.2d 667; Curry v. State, 162 Ga.App. 71, 290 S.E.2d 179, supra; Coile v. State, 161 Ga.App. 51, 52(2), 288 S.E.2d 859; McGee v. State......