Parham v. State , 120 Ga. App. 723 ( 1969 )

Eberhardt, Judge,

concurring. I think the -majority opinion is correct. I agree with the view which Judge Powell expressed in Smith v. State, 3 Ga. App. 803 (61 SE 737). I think we should follow the ruling of the Supreme Court of the United States in Johnson v. Bennett, 393 U. S. 253 (89 SC 436, 21 LE2d 415), wherein there was a remand to the Court of Appeals for the purpose of conforming to the ruling in Stump v. Bennett, 398 F2d 111. If it were not for this action of the Supreme Court, which I deem tantamount to a holding that our rule as to the burden of establishing an alibi imposes an unconstitutional burden on the defendant, I should, like Judge Powell, follow the decisions of our own Supreme Court and vote to affirm the judgment, for without the ruling in the Johnson and Stump cases we should be bound to do so, whatever our view on the matter.