McGee v. State, 68277

• Decision Date: 05 September 1984
• Docket Number: No. 68277,68277
• Citation: 172 Ga.App. 208,322 S.E.2d 500
• Parties: McGEE v. The STATE.
• Court: Georgia Court of Appeals

Page 500

322 S.E.2d 500

172 Ga.App. 208

McGEE v. The STATE.

No. 68277.

Court of Appeals of Georgia.

Sept. 5, 1984.

Rehearing Denied Sept. 25, 1984.

Certiorari Denied Oct. 18, 1984.

James E. Hudson, Kenneth Kalivoda, Athens, for appellant.

Lindsey A. Tise, Jr., Dist. Atty., Barry G. Irwin, Asst. Dist. Atty., for appellee.

BENHAM, Judge.

Appellant was indicted for and convicted of first degree homicide by vehicle (OCGA § 40-6-393); driving under the influence of alcohol (OCGA § 40-6-391); failure to render aid (OCGA § 40-6-271); and operating a vehicle without insurance (OCGA § 33-34-12). In this appeal, he questions the omission of two requested instructions from the trial court's jury charge and the admissibility of certain expert testimony.

1. Appellant submitted a written request to the trial court that it charge the jury that "upon the trial of a criminal case the jury is the judge of both the law and the facts." The trial court did not honor appellant's request verbatim; instead, it chose to instruct the jury that "it is the duty and responsibility of the judge to ascertain the law applicable to a case and to instruct [the jury] of what the law consists. It is [the jury's] duty and responsibility to ascertain the truth of the case from a factual standpoint from the evidence presented to [the jury]. Then it is [the jury's] duty and responsibility to apply the law to the facts, and by this application of law to fact and of fact to law, arrive at a verdict in this case." Appellant argues that reversible error was committed when his charge which was taken from OCGA § 17-9-2 was not given as requested.

"It is not reversible error to fail to charge in the exact language requested when the charge given adequately covers the correct legal principles. [Cits.]" Mullins v. State, 157 Ga.App. 204(6), 276 S.E.2d 877 (1981). "It has long been held that under a proper interpretation of [OCGA § 17-9-2], 'it is the province of the court to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence. While the impaneled jurors are made absolutely and exclusively judges of the facts in the case, they are, in this sense only, judges of the law.' [Cits.] The court is responsible for the correct exposition of the law and 'in the trial of criminal cases it is the duty of the jury to take the law from the court, as it is their duty to take the evidence from the witnesses.' [Cits.]" Griffin v. State, 154 Ga.App. 261(4), 267 S.E.2d 867 (1980). See also Mims v. State, 188 Ga. 702(4), 4 S.E.2d 831 (1939). Inasmuch as the instruction given by the trial court was a "proper interpretation" of the statutory basis of appellant's requested charge, it was not error for the trial court to fail to charge the legal concept now at issue in the language requested by appellant.

2. The trial court also failed to give appellant's requested instruction that "in a criminal case, there is no inference to be drawn from a failure to produce evidence by either side." This requested charge was submitted to the trial court subsequent to and in response to the district attorney's closing argument in which he pointed out to the jury the failure of the defense to produce several potential defense witnesses. Appellant asserts that the trial court's refusal to give the requested instruction allowed the State to create an inference of guilt from appellant's failure to produce the "missing" evidence.

The closing argument of the district attorney was not improper. Wilson v. Zant, 249 Ga. 373(4), 290 S.E.2d 442 (1982); Shirley v. State, 245 Ga. 616(1), 266 S.E.2d 218 (1980); Chancellor v. State, 165 Ga.App. 365(26), 301 S.E.2d 294 (1983). However, appellant's requested charge which directs a jury that it cannot infer anything from a failure by either side to produce evidence is not a correct statement of the law. While the jury may not be instructed to infer guilt from a defendant's failure to produce evidence, the jury may be apprised of facts from which it arrives at the same conclusion. Pritchard v. State, 160 Ga.App. 105(4), 286 S.E.2d 338 (1981). Appellant's proposed instruction would infringe upon the jury's ability to draw conclusions from the facts...