Thornton v. State , 226 Ga. 837 ( 1970 )

Felton, Justice,

concurring specially in part and dissenting in part. Since I am bound by the decisions of this court cited in Parham v. State, 120 Ga. App. 723 (171 SE2d 911), holding that such a charge as we have in this case is not erroneous in that it does not violate the due process clause of the State Constitution, I concur specially in the judgment in this case as to Case No. 25808. I dissent as to the holding that the charge does not violate appellant’s rights under the 14th Amendment of the U. S. Constitution. I agree with Judge Powell’s view expressed in Smith v. State, 3 Ga. App. 803 (61 SE 737). And see Mercer L. Rev., Vol. 21, p. 511. As to the Georgia cases I think that all of them rendered by this court holding that the placing of any affirmative burden of proof as to alibi on a defendant were not contrary to the due process clauses of both the State of Georgia and the United States are wrong and should be overruled. I am of the opinion that the action taken by the Supreme Court of the United States remanding the case of Johnson v. Bennett, supra, to the 8th Circuit Court of Appeals, was a direction to reverse the case under the circumstances.

A correct part of the charge, without the withdrawal of the incorrect charge and without the court’s calling attention to the incorrect charge and giving direction to disregard it, does not cure the error and harm of the erroneous and harmful charge. Tietjen v. Meldrim, 169 Ga. 678 (151 SE 349).