Bright v. State , 251 Ga. 440 ( 1983 )

Hill, Chief Justice,

concurring.

Although I concur in the judgment under the facts of this case,¹ in my opinion the charge complained of in Division 1 should not be given because in many cases it could be error. See Hosch v. State, 246 Ga. 417 (271 SE2d 817) (1980).

In Hosch, we disapproved the use of a similar charge using the word “presumption” and suggested substitution of the word “infer.” Hosch v. State, 246 Ga. at 420 n. 2. Also in Hosch, 246 Ga. at (4), the murder conviction was reversed because the charge was phrased in terms of the ultimate issue to be decided: “the law presumes murder.” Accord, Johnson v. State, 249 Ga. 621 (292 SE2d 696) (1982); Jordon v. State, 232 Ga. 749,750 (208 SE2d 840) (1974). Here, the charge was “the presumption of an intention to kill would arise.” Intention to kill is inextricably interwoven with murder with malice aforethought. OCGA § 16-5-l(a), (b) (Code Ann. § 26-1101). I therefore would urge use of the charge approved in Hosch, supra, in lieu of the charge used in this case.

1 Under the evidence here, two possibilities were presented. Either the defendant intentionally shot the victim in the back, or the victim lay down on the gun which was on the bed (i.e., the gun not was in the defendant’s hand). Under these circumstances, the charge given is not erroneous (as the court finds).