Kramer v. State, 27828

• Decision Date: 05 September 1973
• Docket Number: No. 27828,27828
• Citation: 199 S.E.2d 805,230 Ga. 855
• Parties: Timothy Wayne KRAMER v. The STATE.
• Court: Georgia Supreme Court

Page 805

199 S.E.2d 805

230 Ga. 855

Timothy Wayne KRAMER v. The STATE.

No. 27828.

Supreme Court of Georgia.

Sept. 5, 1973.

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Morris H. Rosenberg, J. Melvin England, Carter Goode, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, William F. Bartee, Jr., Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

GUNTER, Justice.

The appellant in this case was convicted in the trial court for the offenses of murder, armed robbery, and aggravated assault. He filed a motion for a new trial which was overruled, and the case is now here for review.

1. The first enumerated error contends that the trial court committed error 'in charging the jury that the law presumes the intent to kill as this is in conflict with Code Ann. § 26-605 which states that a person will not be presumed to act with criminal intention and therefore is erroneous, prejudicial, misleading, and an incorrect statement of the law.'

The portion of the charge objected to is as follows: 'The law presumes that a person intends to accomplish the natural and probable consequences of his act and if a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily employed to produce death and thereby causes the death of a human being, the law presumes the intent to kill. This presumption may be rebutted. I further instruct you a person shall not be presumed to act with criminal intention but the triors of the fact may find such intention upon consideration of the words, conduct, demeanor and all other circumstances connected with the act for which the accused has been prosecuted.'

The appellant contends that these two paragraphs of the charge are in conflict, the first saying that the law presumes the intent to kill and the second saying that a person will not be presumed to act with criminal intention.

Code Ann. § 26-604 is as follows: 'A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.'

Code Ann. § 26-605 is as follows: 'A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.'

We think the law is very clear that the natural and probable consequences flowing from an act are to be presumed, but such presumption may be rebutted. This is a very different thing from saying that the act producing the consequences is presumed to be a criminal act or is presumed to be a violation of the law. An act producing consequences will not be presumed to be criminal, and it is for the trier of fact to determine whether such act is criminal. Furthermore, the burden is upon the State to prove that the act alleged to be criminal is in fact a criminal act beyond a reasonable doubt.

We find no fault with this portion of the court's charge, and this enumerated error is without merit.

2. The second enumerated error complains that the trial court erred in not ordering the state to play a tape to defense counsel prior to trial which allegedly recorded the confession of the appellant. It is contended that this tape was material as to whether the confession was...