Marable v. State

• Decision Date: 29 April 1980
• Docket Number: No. 59486,59486
• Citation: 267 S.E.2d 837,154 Ga.App. 115
• Parties: MARABLE v. The STATE.
• Court: Georgia Court of Appeals

Page 837

267 S.E.2d 837

154 Ga.App. 115

MARABLE v. The STATE.

No. 59486.

Court of Appeals of Georgia.

Argued Feb. 7, 1980.

Decided March 21, 1980.

Certiorari Denied April 29, 1980.

Harry J. Altman, II, Thomasville, for appellant.

H. Lamar Cole, Dist. Atty., Richard Shelton, Asst. Dist. Atty., for appellee.

DEEN, Chief Judge.

1. "(C)harges which place any burden of persuasion upon the defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error and invited error." State v. Moore, 237 Ga. 269, 270, 227 S.E.2d 241, 242 (1976). The defendant submitted a request to charge, a part of which consisted of definitions which are not essential to the jury's understanding, plus the statement: "Once an issue of an affirmative defense is raised, the burden of proof rests upon the State as to such issue as it does with respect to all other issues in that case and that burden of proof is that the State must disprove the affirmative defense beyond a reasonable doubt." The court did charge as follows: "The defendant enters upon the trial of this case with a presumption of innocence in his favor and this presumption remains with him throughout the trial unless and until it is overcome by the State with evidence which is sufficient to convince you beyond a reasonable doubt of the guilt of the accused. And our law says that no person shall be convicted of any crime unless and until each element of the crime is proved to the satisfaction of the jury beyond a reasonable doubt . . . The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime beyond a reasonable doubt . . . Now, in this case the defendant has interposed his defense of self defense . . ." following which the court discussed what constitutes self-defense and when and to what extent it is legally efficacious. The appellant contends that the failure to give the language of the request on applying the burden of proof to the State to disprove an affirmative defense was error. However, in the first place, the error as pointed out in Moore and similar cases is erroneous burden shifting: placing the onus on the defendant to sustain the burden of proving the defense and thus making an exception to the primary rule that in criminal cases the burden does not shift. Close examination of the charge satisfies us that the jury could not have so misunderstood the instructions as given. Further, where the general charge substantially covers the principles of law raised by the request it is not error to fail to use the exact language requested. Burnett v. State, 240 Ga. 681(7), 242 S.E.2d 79 (1978). We find no reversible error in failing to use the exact language requested.

2. Aggravated assault is an assault (a) with intent to commit certain crimes, or (b) with a deadly weapon. Code § 26-1302. Accordingly, where the defendant admitted drawing a pistol and shooting and wounding the victim, the evidence, if it showed an assault at all (that is, if it was insufficient to establish justification) showed an aggravated rather than a simple assault. The court properly refused to charge simple assault as a lesser included offense. In the same manner, simple battery may be committed by intentionally causing physical harm to another. When the evidence shows without contradiction that if the defendant intentionally caused physical harm to the victim (by wounding him with a pistol) the act constituted aggravated assault, simple battery is not involved as a lesser included offense. Where the uncontradicted evidence shows completion of the greater offense, the charge on the lesser offense is not required. Jordan v. State, 239 Ga. 526(2), 238 S.E.2d 69 (1977). The choices which the jury had here where all the evidence established that the defendant drew a...