Byrd v. Hopper

29 Citing cases

  1. Byrd v. Hopper

    402 F. Supp. 787 (N.D. Ga. 1975)   Cited 2 times

    The petitioner was convicted of motor vehicle theft in the Superior Court of Troup County and sentenced to five years imprisonment; he did not take a direct appeal of the conviction but filed a state habeas corpus petition which was denied, and the Georgia Supreme Court affirmed that denial with two justices dissenting. Byrd v. Hopper, 234 Ga. 248, 215 S.E.2d 251 (1975). The petitioner contends that he was denied due process when the state trial judge charged the jury concerning the effect of his possession of a recent stolen vehicle as follows:

  2. Carpenter v. State

    231 S.E.2d 97 (Ga. Ct. App. 1976)   Cited 7 times

    The charge, as given, is the well-established law of this state. See Aiken v. State, 226 Ga. 840 ( 178 S.E.2d 202); Scott v. State, 122 Ga. 138 ( 50 S.E. 49); Pounds v. State, 136 Ga. App. 852 (1, 4) ( 222 S.E.2d 629); Taylor v. State, 118 Ga. App. 605 ( 164 S.E.2d 876); Mathews v. State, 103 Ga. App. 743 (2) ( 120 S.E.2d 359). It has been upheld against attacks that it was an impermissible comment on the defendant's right to remain silent ( Thomas v. State, 237 Ga. 690; Horton v. State, 228 Ga. 690 (1) ( 187 S.E.2d 677); Pounds v. State, 136 Ga. App. 852 (1), supra), and against attacks that it was burden-shifting ( Byrd v. Hopper, 234 Ga. 248 ( 215 S.E.2d 251); Jacobs v. Caldwell, 231 Ga. 600 ( 203 S.E.2d 188); Workman v. State, 137 Ga. App. 746 (5) ( 224 S.E.2d 757); Pounds v. State, 136 Ga. App. 852 (4), supra). State v. Moore, 237 Ga. 269 ( 227 S.E.2d 241) does not apply to this case because it was tried before the Moore decision.

  3. Selph v. State

    234 S.E.2d 831 (Ga. Ct. App. 1977)   Cited 27 times

    This is true without direct proof or other circumstantial evidence that the defendant committed the theft. See in this connection Byrd v. Hopper, 234 Ga. 248, 250 ( 215 S.E.2d 251); Holliday v. State, 23 Ga. App. 400 (1) ( 98 S.E. 386); Tucker v. State, 57 Ga. 503 (2); Rutland v. State, 90 Ga. 102 (1) ( 15 S.E. 813); Dean v. State, 93 Ga. 184, 186 ( 18 S.E. 557); Chubbs v. State, 204 Ga. 762, 764 ( 51 S.E.2d 851); Barlow v. State, 17 Ga. App. 728 (1) ( 88 S.E. 212); Craig v. State, 91 Ga. App. 418 ( 85 S.E.2d 777). While there has been some criticism of charges where the word "presumption" is used rather than "inference" ( Byrd v. Hopper, 234 Ga. 248, 251, supra) and it would be better to use the word "inference" or the words "presumption of fact," we do not have that problem here. To convict a defendant based upon recent possession of stolen goods, it must be shown the goods were stolen and there must be an absence of or an unsatisfactory explanation of that possession. Chubbs v. State, 204 Ga. 762, supra.

  4. Williamson v. State

    281 S.E.2d 512 (Ga. 1981)   Cited 57 times
    Holding that the charge was not unconstitutionally burden shifting

    (1) (a) While it is the rule in this state that recent unexplained possession of stolen property permits the jury to infer that the accused committed the theft, "it should be emphasized that the recent unexplained possession creates only a permissible inference of guilt of a `presumption of fact,' in terms of Code § 38-113 which the jury may or may not draw." Byrd v. Hopper, 234 Ga. 248, 250-51 ( 215 S.E.2d 251) (1975). "The nearer the possession to the time of the [theft], the stronger will be the inference of guilt; and the question of the result of the lapse of time is for the jury."

  5. Stephens v. Hopper

    241 Ga. 596 (Ga. 1978)   Cited 73 times
    Holding that kidnapping with bodily injury was not a lesser included offense to murder, where killing was bodily injury, because crimes have different elements

    This argument raises the question whether sentencing charges on death cases will be reviewed by this court on habeas corpus when not preserved by proper objection. The general rule is that jury charges are not reviewable on habeas, although a charge which is so defective as to render the trial fundamentally unfair is reviewable in habeas corpus proceedings ( Byrd v. Hopper, 234 Ga. 248 ( 215 S.E.2d 251) (1975)), even though unobjected to at trial. Parrish v. Hopper, 238 Ga. 468 ( 233 S.E.2d 161) (1977).

  6. Parrish v. Hopper

    238 Ga. 468 (Ga. 1977)   Cited 18 times
    In Parrish v. Hopper, 238 Ga. 468, 470, 233 S.E.2d 161 (1977), Justice Hall, (specially concurring) pointed out that in § 50-127(1) the legislature had tried to enact the federal law of waiver, a legislative effort which he believed was impossible because only the courts, especially federal courts, could dictate what the federal law of waiver would be.

    It is true that Shoemake v. Whitlock, 226 Ga. 771 ( 177 S.E.2d 677) (1970) stated that jury charges could not be challenged on habeas corpus; but I do not believe that any member of the court thinks that this states the law correctly in all instances. The proper standard allows jury charges to be considered on habeas if their deficiencies rendered the trial fundamentally unfair, as was recognized in Byrd v. Hopper, 234 Ga. 248 ( 215 S.E.2d 251) (1975) which modified Shoemake, but stopped short of overruling it. It should be noted that after he failed to obtain relief in this court, Shoemake's writ was granted by the federal district court in a decision plainly spurning any contention that objections to jury charges in a proper case are not cognizable in federal habeas.

  7. Allen v. State

    235 Ga. 709 (Ga. 1975)   Cited 66 times
    Explaining that restraints should not be used on a criminal defendant unless the trial court determines that special circumstances warrant added security precautions

    This is not a case in which the charge created any presumption of guilt. See Byrd v. Hopper, 234 Ga. 248 ( 215 S.E.2d 251) (1975). Habeas Case No. C 75-1128 A (N. D. Ga. 10-20-75). This enumeration is without merit.

  8. Cooper v. State

    342 Ga. App. 351 (Ga. Ct. App. 2017)   Cited 1 times

    The charge, taken as a whole, left the burden of persuasion on the [Sjtate. (Citations omitted.) Byrd v. Hopper, 234 Ga. 248 , 250-251 (215 SE2d 251 ) (1975). Accordingly, this enumeration fails.

  9. Payne v. State

    545 S.E.2d 336 (Ga. Ct. App. 2001)   Cited 12 times
    Upholding the charge, “If you find that a person owns, leases or has control of a vehicle, you will be permitted, but not required, to infer that such person is in possession of that vehicle and all of the property located on or in it. However, this is a rebuttable inference and may be overcome by evidence in this case that others had access to the vehicle.”

    "Whether the charge is fashioned in the language of `inferences' or `presumptions,' the technical import of the charge is the same. . . ." Byrd v. Hopper, 234 Ga. 248, 251 ( 215 S.E.2d 251) (1975); see also Pouncey v. Adams, 206 Ga. App. 126, 128-129 (2) ( 424 S.E.2d 376) (1992). We find that the given charge was appropriate, adjusted to the evidence and would not have left the jury with an erroneous impression.

  10. Pouncey v. Adams

    206 Ga. App. 126 (Ga. Ct. App. 1992)   Cited 18 times

    "Whether the charge is fashioned in the language of `inferences' or `presumptions,' the technical import of the charge is the same." Byrd v. Hopper, 234 Ga. 248, 251 ( 215 S.E.2d 251). This is especially true when the language charged is that of a "permissible inference" and the factual predicate for the permissible inference is clearly set forth to the jury, as was done in this case, so no fair risk exists that the jury could view the charge as pertaining to a presumption of law. Id.