Summary
holding trial court's refusal to give requested instruction that defendant's failure to testify in his own favor was not to create a presumption against him was reversible error
Summary of this case from Guerra v. StateOpinion
30749.
SUBMITTED JANUARY 29, 1976.
DECIDED MARCH 8, 1976.
Armed robbery. Fulton Superior Court. Before Judge Alverson.
Henry C. Ross, for appellant.
Lewis R. Slaton, District Attorney, Donald J. Stein, Assistant District Attorney, Arthur K. Bolton, Attorney General, Isaac Byrd, for appellee.
This appeal, from an armed robbery conviction in Fulton Superior Court, presents only one issue for decision: Did the trial court err in failing to charge the jury, upon the written request of the defendant to do so, that the defendant's failure to testify in his own favor shall not create a presumption against him? Two recent decisions of this court, noted below, lead us to conclude that it was error and that a new trial must be ordered in this case.
In fairness to the capable trial judge who presided at this trial, it should be observed that the defendant was tried on July 7, 1975, before this court had passed on the issue. At the time of the trial, Linder v. State, 132 Ga. App. 624, 625 (3) ( 208 S.E.2d 630) (1974) was being followed by the trial courts. Linder held that such a charge was error. On September 5, 1975, this court decided Woodard v. State, 234 Ga. 901, 903 ( 218 S.E.2d 629) (1975), which held that such a charge would be proper but that it was not "error to fail to so charge in the absence of a proper and timely request." This was the first precursor of the decision we reach in this case. Woodard expressly disapproved of the holding in Linder v. State, supra.
After Woodard came Stapleton v. State, 235 Ga. 513 ( 220 S.E.2d 269) (1975). In that case, the trial judge gave, without request by the defendant, an instruction to the jury that is similar to the instruction requested but refused in the present case. We held that it was not error for the charge to be given and that such a charge "was, in fact, beneficial to the defendant." Id., p. 520.
It necessarily follows, as a matter of logical reasoning, that when a proper charge on this subject is timely requested by the defendant, it is error for the trial judge to fail to give it. This error requires a new trial.
Judgment reversed. All the Justices concur.