Cowart v. State , 237 Ga. 282 ( 1976 )

237 Ga. 282 (1976) 227 S.E.2d 248

COWART
v.
THE STATE.

30777.

Supreme Court of Georgia.

Argued April 12, 1976. Decided June 30, 1976. Rehearing Denied July 14, 1976.

John W. Timmons, Jr., Jack H. Affleck, for appellant.

Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.

JORDAN, Justice.

Mike Cowart was convicted of criminal attempt to commit statutory rape, and his conviction was affirmed by the Court of Appeals. Cowart v. State, 136 Ga. App. 528 (221 SE2d 649) (1975). We granted certiorari to consider a burden-shifting charge by the trial judge on the appellant's affirmative defense of abandonment of the effort to commit the crime. Code Ann. § 26-1003 (Ga. L. 1968, pp. 1249, 1275). The trial judge instructed the jury that this defense must be made to appear by a preponderance of the evidence.

In State v. Moore, 237 Ga. 269 (1976), this court held that it was not error to give a similar charge on the affirmative defense of coercion, but that such a burden-shifting charge would not be approved in cases tried after the final date of that decision.

Judgment affirmed. All the Justices concur, except Gunter, Ingram, and Hill, JJ., who dissent.

HILL, Justice, dissenting.

I respectfully dissent. I would adopt the opinion of the Court of Appeals in Moore v. State, 137 Ga. App. 735 (224 SE2d 856) (1976).

I am authorized to state that Justice Ingram joins in this dissent.