Davis v. State , 238 Ga. 239 ( 1977 )

Hall, Justice.

On May 7, 1976, Davis was convicted and sentenced to imprisonment for armed robbery and kidnapping, and now brings this appeal raising the sole allegation that an erroneous alibi charge was given at his trial.

Assuming, without deciding, that the charge given on alibi contained some possible imperfection, we conclude that the charge given was more favorable to defendant than the one his counsel requested.

The basic claim of error here is that the charge given used the words "reasonable satisfaction” of the jury, which is claimed to be burden-shifting. The charge, however, did not require that alibi be established to the reasonable satisfaction of the jury, but concluded by saying "you should consider any evidence in this regard, along with all the other evidence in this case, and if you are not convinced beyond a reasonable doubt that he is guilty, then you should acquit him.” That was a correct statement of the law, and was fair to defendant, whereas the charge his counsel requested (which was not given) contained this damaging sentence: "Alibi as a defense need only be established to the reasonable satisfaction of the jury and not beyond a reasonable doubt.”

Thus, appellant, having himself introduced the "reasonable satisfaction” language, complains of the trial court’s amendatory treatment of his request. Any error in this charge, if there was error, was induced by the defense, and cannot constitute reversible error. This trial was held some months after our opinion in Patterson v. State, 233 Ga. 724 (213 SE2d 612) (1975) which set forth an approved alibi charge. See Edwards v. State, 235 Ga. 603, 604 (221 SE2d 287) (1975); Johnson v. State, 235 Ga. 486, 491 (220 SE2d 448) (1975); Tamplin v. State, 235 Ga. 20, 25 (218 SE2d 779) (1975); Jackson v. State, 234 Ga. 549, 553 (216 SE2d 834) (1975); Bradley v. State, 137 Ga. App. 670, 672 (224 SE2d 778) (1976).

Judgment affirmed.

All the Justices concur, except Gunter, Ingram, and Hill, JJ., who dissent. Rehearing denied January 27, 1977. Roy M. Lilly, Jr., for appellant. H. Lamar Cole, District Attorney, Richard W. Shelton, Assistant District Attorney, Arthur K. Bolton, Attorney General, Kirby G. Atkinson, Assistant Attorney General, for appellee.