Stovall v. State ( 1976 )

Gunter, Justice,

dissenting.

Excerpts from the charge of the court to the jury in this case were as follows: The law presumes every intentional homicide to be malicious until the contrary appears from circumstances of alleviation, justification, mitigation, or excuse. The burden is on a slayer whenever an intentional homicide has been proved to make out-such circumstances to the satisfaction of the jury unless such circumstances appear from the evidence produced against the slayers. If such evidence produced against a slayer, if there be such, discloses the homicide was done without malice, then this presumption that the homicide is malicious does not exist. If, however, the evidence produced against a slayer, if there be such, does not disclose that the killing was done without malice, then it is incumbent upon the. slayer to show that it was done without malice.. . When and if a killing is proved to your satisfaction to be the intentional act of one of the defendants in this case, the presumption of innocence with which he enters upon the trial is removed from him. And, the burden is upon him to justify or mitigate the homicide unless the evidence introduced against him shows justification or mitigation. But, as I have charged you heretofore, the evidence of justification or mitigation may be found in the evidence produced against him. If there be no evidence introduced to show justification or mitigation, and if the evidence introduced shows a homicide to have been committed as charged in the indictment, the burden would then be upon the slayer to show mitigation or excuse. The transcript also shows the following colloquy with respect to exceptions by appellant’s counsel to the charge of the court: "The Court: Does either the State or Defense counsel call attention to any obvious error that may have been in the Court’s charge? Mr. Ison: The State has none. Mr. Steinberg: If Your Honor please, we’d like to perfect the record on behalf of Defendant Gillespie. We object to the Court charging that at any time during these proceedings the burden or any burden transferred to Defendant David Wayne Gillespie, whether or not an intentional homicide was shown. We also object — The Court: That’s the law, Mr. Steinberg. Mr. Steinberg: Sir? The Court: That’s the law. Mr. Steinberg: Yes. The Court: But, if an intentional homicide is shown the burden is shifted. It’s an exception to the general law. Mr. Steinberg: All right, sir.”

It is my view that such a charge given in a criminal case is burden-shifting, violative of the State and Federal Constitutions, and cannot be held to be harmless error. See my dissenting opinion in Abner v. State, 233 Ga. 922, 925 (213 SE2d 851) (1975).

I respectfully dissent.