State v. Avery
| Decision Date | 03 November 1976 |
| Docket Number | No. 31159,31159 |
| Parties | The STATE v. F. J. AVERY. |
| Court | Georgia Supreme Court |
Richard Bell, Dist. Atty., Calvin A. Leipold, Jr., Asst. Dist. Atty., Decatur, for appellant.
Wynn Pelham, Lawrenceville, for appellee.
The Court of Appeals reversed the aggravated assault conviction of the defendant Avery because the trial court did not charge the jury that the burden of persuasion was on the State to show that Avery was sane beyond a reasonable doubt. Avery v. State, 138 Ga.App. 65, 225 S.E.2d 454 (1976). We granted the State's application for certiorari to consider whether this ruling comports with our decision in Grace v. Hopper, 234 Ga. 669, 217 S.E.2d 267 (1975). We reverse. We note, as did the Court of Appeals, that this case does not involve a charge shifting the burden of proof of an affirmative defense to the defendant. The trial court here did not specifically allocate the burden of proving sanity or insanity to the State or to the defendant. However, the court initially charged generally on the presumption of innocence and the State's burden of proving guilt beyond a reasonable doubt.
The jury, after several hours of deliberation, returned to the courtroom with an inquiry: 'The question that the jury wishes to address the Court is, does the State have to prove the mental competence at the time of the offense. . . . or does the defense have to prove he is mentally (in)competent?' The trial court then recharged, See the Court of Appeals opinion, supra, 138 Ga.App. at p. 66, 225 S.E.2d at 454. 1 The Court of Appeals stated: (citations omitted) Avery v. State, supra at p. 66, 225 S.E.2d at p. 455.
The law of Georgia is not that the burden rests on the State to prove sanity beyond a reasonable doubt. As we said in Grace v. Hopper, supra, 234 Ga. at p. 671, 217 S.E.2d at p. 269: Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1951); McLendon v. State, 205 Ga. 55, 52 S.E.2d 294 (1949); Keener v. State, 97 Ga. 388, 24 S.E. 28 (1895). Thus there is no error in failing to charge that the burden of proving sanity beyond a reasonable doubt is on the State.
However, if the court does charge that the State must prove the defendant's sanity beyond a reasonable doubt, it would be harmless error as such a charge would be beneficial to the defendant. Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975). See, State v. Moore, supra.
Since there are other enumerations urged by the defendant which were not treated by the Court of Appeals, the case is remanded for further consideration consistent with this opinion.
Judgment reversed and remanded.
All the Justices concur,...
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