Millwood v. State
| Decision Date | 08 March 1985 |
| Docket Number | No. 69292,69292 |
| Citation | 329 S.E.2d 273,174 Ga.App. 113 |
| Parties | MILLWOOD v. The STATE. |
| Court | Georgia Court of Appeals |
Lawrence B. Custer, Lawrence E. Burke, Marietta, for appellant.
Darrell E. Wilson, Dist. Atty., Mickey R. Thacker, Asst. Dist. Atty., for appellee.
The defendant appeals his conviction for child molestation, for which he was sentenced to ten years, three to serve in confinement and seven on probation. Held:
1. Since the principal eyewitnesses were the defendant and his stepchild whom he allegedly molested, the defense relied heavily upon proof of his good character as testified to by several witnesses.
The defendant filed a written request to give this instruction to the jury: "I charge you that the good character of the accused, Randy Millwood, may alone be sufficient to cause a reasonable doubt in your mind." This requested instruction was not given; instead the trial judge charged as follows: "regardless of whether or not the Defendant has any other defense and regardless of whether or not there is any other evidence in the record upon which a reasonable doubt as to his guilt could be based, proof of good character may of itself constitute such a defense in his behalf, and you, the jury, overriding any amount of positive evidence pointing to the guilt of the Defendant, if you see fit, acquit the Defendant upon the reasonable doubt and proof of good character generated in your minds ..." (Emphasis supplied.)
It is now well settled: "[I]t is no longer necessary to give the exact language of requests to charge when the same principles are fairly given to the jury in the general charge of the court." Shirley v. State, 245 Ga. 616, 619, 266 S.E.2d 218 (1980). Therefore, the only issue before us is whether the charge as given correctly instructed the jury regarding the principles of proof of good character.
In consideration of this matter, it should be recognized that "the general rule is that, ' "A mere verbal inaccuracy in a charge, which results from a palpable 'slip of the tongue,' and clearly could not have misled or confused the jury" ' is not reversible error." Gober v. State, 247 Ga. 652(3), 655, 278 S.E.2d 386 (1981). Here, there was no slip of the tongue since the charge as given precisely tracks the pattern Criminal Jury Instruction. The particular instruction is based on Loomis v. State, 78 Ga.App. 336, 358, 51 S.E.2d 33 (1948). Nevertheless, there is a variance in the pattern instruction and the language of the case. While the pattern charge authorizes acquittal "upon the reasonable doubt and proof of good character generated in your minds," (emphasis supplied) the original text of Loomis v. State, 78 Ga.App. 336, 358, 51 S.E.2d 33, supra, instructed the jury to acquit "upon the reasonable doubt that (emphasis supplied) the proof of good character generated in their minds."
In Shropshire v. State, 81 Ga. 589, 8 S.E. 450 (1888) the court considered a charge which began: " " The Supreme Court pointed out: " 'The old rule that evidence of good character of the accused is not to be considered by the jury, unless the other evidence leaves their mind in doubt, is no longer in force.' " The court held that while the jury is authorized to convict where satisfied of defendant's guilt beyond a reasonable doubt regardless of accused's good character; yet the jury should consider proof of good character which may of itself create or generate reasonable doubt. Since that holding, the rule has not been otherwise in Georgia. However, the defendant contends that the use of the coordinating conjunction and, instead of the subordinating conjunction that, in effect returns the law to the status abolished by the Shropshire case. In brief, it is urged that the criticized instruction requires the jury to have a reasonable doubt and proof of good character rather than a reasonable doubt engendered or occasioned, or caused, or raised, by proof of good character.
Our analysis leads us to the conclusion that the argument has merit. We recognize that the first part of the charge emphasizes that proof of good character of itself may constitute a defense in the accused's behalf. Nevertheless, this concrete and accurate assertion is then effectively negated by the remaining language. Moreover, the erroneous concept that proof of good character was needed in addition to a reasonable doubt, rather than the proper concept that proof of good character could cause a reasonable doubt, was reinforced. The court further charged: "However now, ladies and gentlemen, proof of good character does not mean that you should acquit the Defendant if you find that the State has proven the Defendant guilty beyond a reasonable doubt." A separate standing of the two propositions, rather than the supportive relationship which the law intends the one to have with respect to the other, was reiterated. Evidence of good character is evidence of a positive fact, not mere makeweight. Seymour v. State, 102 Ga. 803, 30 S.E. 263 (1897). The jury is not schooled in the...
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Park v. State
...punctuation and emphasis omitted); see Perkins v. State, 226 Ga.App. 613, 614(1a), 487 S.E.2d 365 (1997); Millwood v. State, 174 Ga.App. 113, 115(2), 329 S.E.2d 273 (1985).32 Williams, supra, 180 Ga.App. at 563(1), 349 S.E.2d 797; see Ward v. State, 186 Ga.App. 503, 504(1), 368 S.E.2d 139 (......
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Loumakis v. State
...event, the form of your verdict would be, 'We, the jury, find the defendant not guilty.' " (Emphasis supplied.) In Millwood v. State, 174 Ga.App. 113(1), 329 S.E.2d 273, this court specifically disapproved the above given jury instruction, reversing the judgment entered by the trial court b......
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Booth v. State, 75658
...error mandating reversal because it negates the rule that good character of itself may engender a reasonable doubt. Millwood v. State, 174 Ga.App. 113, 329 S.E.2d 273; see Steele v. State, 181 Ga.App. 695(2), 353 S.E.2d 612. Our court in both Millwood and Steele declined to find harmless er......
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Kilgore v. State
...being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.' " Millwood v. State, 174 Ga.App. 113, 115(a), 329 S.E.2d 273 (1985). It is apparent that the little girl made the statements to the first adult unconnected with the defendant or the......