Balkman v. State , 32 Ga. App. 360 ( 1924 )

Bloodworti-i, J.,

dissenting. The excerpt from the charge of the court upon which the majority opinion is based closes with these words: “If you have any reasonable doubt about the guilt of the defendant, you will give him the benefit of the doubt. If, in considering his defense, you believe that he acted under the fears of a reasonable man and under what seemed to him a present necessity to shoot, if he did shoot, or if you have any reasonable doubt on that subject, give him the benefit of the doubt.” I cannot agree with my associates that the judgment in this case should be reversed on the ground that the judge failed to add at the end of this excerpt the words “and find him not guilty.” The court fully and clearly instructed the jury upon reasonable doubt, and, both before and after the portion of the charge under discussion, told them that if the evidence did not show beyond a reasonable doubt the guilt of the accused, it would be their duty to acquit him. I think that where a charge has in it a clear enunciation of the rule that if the jury has any reasonable doubt of the guilt of the defendant it would be their duty to acquit him, it is not necessary, each time they are instructed “if you have any reasonable doubt as to his guilt, you should give him the benefit of the-doubt,” to add thereto the words, “and acquit him.” When the whole charge in this case is considered, I do not think the jury could have reached any other conclusion, upon being told to give the defendant the benefit of the doubt, than that this meant that if they did this, a verdict of not guilty would necessarily follow. I do not think that the judge is required to repeat these words any more than he is to repeat instructions on reasonable doubt. See Harris v. State, 1 Ga. App. 136 (4) (57 S. E. 937); Watts v. State, 9 Ga. App. 500 (2) (71 S. E. 766); Nance v. State, 126 Ga. 95 (2) (54 S. E. 932).