Mckibben v. State, 27155.

• Decision Date: 19 January 1939
• Docket Number: No. 27155.,27155.
• Parties: McKIBBEN. v. STATE.
• Court: Georgia Court of Appeals

59 Ga.App. 345

200 S.E. 814

McKIBBEN.

v.STATE.

No. 27155.

Court of Appeals of Georgia,

Division No. 1.

Jan. 19, 1939.

Syllabus by the Court.

1. A charge in the following language: "He files his plea of not guilty, thereby putting the burden on the State to prove each and every allegation in the bill of indictment as alleged, to your satisfaction, beyond a reasonable doubt. The presumption was at the outset that he was innocent. That legal presumption of innocence alone entitles him to an acquittal at your hands unless overcome by proof of guilt beyond a reasonable doubt, " does not prevent the jury from giving to the defendant, at every stage of the case before his guilt has been shown beyond a reasonable doubt, the benefit of the presumption of innocence.

2. The evidence supported the verdict and the court did not err in overruling the motion for new trial.

Error from Superior Court, Polk County; J. R. Hutcheson, Judge.

Proceeding between the State and J. McKibben. From the judgment rendered, J. McKibben brings error.

Affirmed.

J. A. Wright and Henry A. Stewart, both of Cedartown, for plaintiff in error.

Hal C. Hutchens, Sol. Gen, of Dallas, for defendant in error.

GUERRY, Judge.

Complaint is made as to the following charge by the court: "He files his plea of not guilty, thereby putting the burden on the State to prove each and every allegation in the bill of indictment as alleged, to your satisfaction, beyond a reasonable doubt. The presumption was at the outset that he was innocent. That legal presumption of innocence alone entitles him to an acquittal at your hands unless overcome by proof of guilt beyond a reasonable doubt." It is contended that such charge was misleading and confusing in that the use of the word "outset" limited the presumption of innocence in favor of the defendant to the beginning of the trial and prevented the presumption from remaining with him through the trial.

It is true that "It is error to fail to charge the jury in a criminal case substantially to the effect that the defendant enters upon' his trial with the presumption of innocence in his favor, and that this presumption of innocence remains with him throughout the trial and until his guilt is established by proof." Reddick v. State, 11 Ga.App. 150 (4), 74 S.E. 901, 902. The language used by the trial judge was inapt and subject to criticism, but we do not think requires a reversal of this case in view of the entire charge. The paragraph excepted to shows that the jury were...