Simmons v. State, 47111

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: BELL
• Citation: 126 Ga.App. 401,190 S.E.2d 835
• Parties: J. V. SIMMONS v. The STATE
• Docket Number: No. 1,No. 47111,47111,1
• Decision Date: 07 June 1972

Page 835

190 S.E.2d 835

126 Ga.App. 401

J. V. SIMMONS v. The STATE.

No. 47111.

Court of Appeals of Georgia, Division No. 1.

June 7, 1972.

Alexander Cocalis, Patricia W. Cocalis, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carter Goode, William M. Weller, Joel M. Feldman, Atlanta, for appellee.

Syllabus Opinion by the Court

BELL, Chief Judge.

1. The evidence warranted the trial court's finding that the defendant intelligently waived in writing his constitutional right to the benefit of counsel at a police line-up. Ford v. State, 227 Ga. 279, 180 S.E.2d 545.

2. The defendant, indicted for five counts of robbery by intimidation and by use of an offensive weapon, was convicted of the lesser offense of robbery by intimidation on all counts. Code Ann. § 26-1902. The evidence authorized the conviction and it was not error to refuse to direct a verdict of acquittal. Summers v. State, 99 Ga.App. 183, 108 S.E.2d 140.

3. The defendant requested and the court refused to charge the jury that: 'I charge you that the burden is on the State to prove the offense as charged in the indictments.' The trial court charged in part as follows: 'Now, this defendant enters upon the trial of these cases with a presumption of innocence in his favor and that presumption remains with him throughout the trial of the case until and unless the State produces evidence in your presence and hearing sufficient to satisfy your minds beyond a reasonable doubt of the defendant's guilt of the offense charged or offenses charged.' The court then when charging on the subject of reasonable doubt stated 'While the law requires the State to prove the defendant's guilt of the offense charged to your satisfaction beyond a reasonable (sic) yet the law does not require the State to prove the defendant's guilt to a mathematical or absolute certainty.' The court charged that the presumption of innocence remains with the defendant until and unless the State 'produces' evidence of guilt beyond a reasonable doubt and reiterated that the law 'requires' the State to prove the defendant's guilt beyond a reasonable doubt. All of these excerpts leave no room for doubt that the court charged the jury that the burden of proof is upon the State. See Thomas v. State, 129 Ga. 419(4), 59 S.E. 246; Benton v. State, 158 Ga. 41(4, 6), 122 S.E. 775. Failure to give a requested charge in the exact language of the request where the substance of the request is in fact charged is no longer a ground for a new trial. Young v. State, 226 Ga. 553(5), 176 S.E.2d 52; McKinney v. State, 121 Ga.App. 815(3), 175 S.E.2d 893. But assuming arguendo, that it was error to fail to charge as requested, the error is not cause for reversal. Defendant was positively identified as a perpetrator of each and every count of the indictment by the State's witnesses at an out-of-court police line-up and at trial. The defendant limited his case to his unsworn statement. After stating that he became addicted to drugs while in the military in Viet Nam, he went on to say in part: '. . . When I got out . . . I didn't have the funds . . . like I did when I was in the service. So, it's kind of hard to say . . . all these accusations . . . no one was...