Stubbs v. State

Beasley, Presiding Judge,

concurring specially.

1.1 concur in the judgment because it was not reversible error for the court to omit charging the language of OCGA § 24-4-6, which was not requested by defendant. Charging such language should be abolished. See the reasons therefor in Roura v. State, 214 Ga. App. 43 (447 SE2d 52) (1994).

The court charged on the definitions of direct and circumstantial evidence and that the weight of either is a question for the jury. The court fully instructed the jury on burden of proof, presumption of innocence, reasonable doubt, the essential elements of the crimes, and other usual instructions. The omission of OCGA § 24-4-6 was not prejudicial.

2. The dissent states that OCGA § 16-7-20 requires direct proof of “intent to use the tools in the commission of a crime.” This overlooks the law that “the trier of facts may find [criminal] intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. See Suggested Pattern Jury Instructions, Vol. II, p. 10. Rarely, if ever, is there direct proof of what was in a defendant’s mind when he or she committed the act charged as being criminal. The court in this case gave the pattern charge, as well as a further explanation of what is meant by the element of intent and what may be used to prove it. Moreover, defendant was charged as a party to the crimes, and the court so instructed the jury. OCGA §§ 16-2-20; 16-2-21.

3. As to Croker v. State, 101 Ga. App. 742, 743 (2) (115 SE2d 413) (1960), the quotation comes from a civil case in the very first volume of this court’s reports, Ga. R. &c. Co. v. Harris, 1 Ga. App. 714 (57 SE 1076) (1907). Croker also cites another civil case (Camp v. Emory Univ., 95 Ga. App. 442 (98 SE2d 66) (1957)), which quotes that first volume civil case and another civil case (White v. Executive Comm. of Bapt. Convention, 65 Ga. App. 840, 842 (16 SE2d 605) (1941)). The history of the circumstantial evidence charge used in *877criminal cases and found in OCGA § 24-4-6 is substantially set forth in Roura, supra.