1. In all criminal cases, including homicide cases, tried under a plea of not guilty, the presumption of innocence is a fundamental doctrine of American criminal jurisprudence. This presumption remains with the defendant throughout the progress of the trial, unless and until it be overcome in the minds of the jury from what is adduced on the stand, under the rules of law as given by the court. When the presumption of innocence may in fact be overcome in their minds, and the burden shifted, is but a rule of evidence. Even in the plainest of cases, it is for the jury to determine as a matter of fact under instructions from the court, and not for the court to determine as a matter of law, whether such original presumption of innocence has or has not been overthrown. This court has often dealt with the rule of evidence as to when, in a homicide case, the burden is shifted, by approving or disapproving instructions given by the court to the jury on this subject. In Mann v. State, 124 Ga. 760 (53 S.E. 324, 4 L.R.A. (N.S.) 934), this court approved a charge to the jury, which was in the following language: "When the killing is proved to be the act of the defendant, the presumption of innocence with which he enters upon the trial is removed from him, and the burden is then upon him to justify or mitigate the homicide; but, as before charged, the evidence to do this may be found in the evidence offered by the State to prove the killing, as well as by the evidence offered by the defendant." This rule, as set forth in the Mann case, has been approved and followed many times. See Brown v. State, 184 Ga. 305 (1) (191 S.E. 108); Roberts v. State, 189 Ga. 36, 45 (4) (5 S.E.2d 340), and citations in those cases. But approval of a rule held to be proper with respect to instructions to the jury, in order to guide them in their own determination of when and under what circumstances this presumption of innocence should be taken as having been shifted, is one thing, and the question as to whether the judge has the right to withhold altogether from the jury the doctrine of the presumption of innocence, by determining for himself and as a matter of law that under the evidence it has no place in a criminal trial under a plea of not guilty, is an altogether different thing. The very fact that in the Mann case, and the cases cited following it, the court was ruling on what constituted correct instructions to the jury in respect to how and when the presumption of innocence would *Page 240 be taken as removed, is in itself clearly indicative that the question is one not for the court but for the jury to determine. Thus, while it is the function of the judge to submit to the jury appropriate instructions on the question as to whether in their minds the presumption of innocence has or has not been removed, it is still true that, even in the plainest of cases, he can no more withhold or withdraw this basic safeguard with which all persons accused of crime are clothed than he could in a flagrant case direct a verdict of guilty. That, of course, he can not do since the jury alone has the power to condemn. Accordingly, the rulings by the Court of Appeals (Reddick v. State, 11 Ga. App. 150 (4), 74 S.E. 901; Butts v. State, 13 Ga. App. 274 (1), 79 S.E. 87); Thurman v. State, 14 Ga. App. 543 (6), 81 S.E. 796, to the effect that in criminal cases it is error to fail to charge on the presumption of innocence, with which one accused of crime enters upon his trial, embody a sound principle of law, and this is true irrespective of what the evidence or lack of evidence may be, and even though the jury, under instructions of law from the court, should unquestionably find that such original presumption of innocence had in fact been overcome.
2. Since the case must be retried, it is well to stress again the previous admonition of this court that it is reversible error to give in charge the provisions of Code §§ 26-1011, 26-1012 in such a manner as to confuse the jury in a proper application of the principles of law as contained in § 26-1014. Franklin v. State, 146 Ga. 40 (90 S.E. 480); Boatwright v. State, 162 Ga. 378, 379 (4) (134 S.E. 91); Little v. State, 164 Ga. 509 (5) (139 S.E. 37); Smith v. State, 203 Ga. 317 (46 S.E.2d 583).
3. The remaining grounds of the motion for new trial have been considered and are without merit.
Judgment reversed. All the Justices concur, except Bell, J., absent on account of illness.
No. 16297. SEPTEMBER 7, 1948. STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE. The trial judge, in overruling the ground of the motion for new trial based on his failure to charge on the presumption of innocence, gives a statement of his view with respect to the evidence, and makes a strong presentation of his resultant view of the law on the question here dealt with. This portion of the order, adopted by the Attorney-General, is quoted in full. The Solicitor-General takes the position, "We know that in all criminal cases, except homicide cases where human life has been taken, that the defendant is presumed to be innocent. However, no such presumption is with a defendant in a homicide case, and when the State proves that the defendant killed the person named in the indictment, in the county and in the manner alleged, the *Page 241 defendant is presumed to be guilty, and the burden is shifted to defendant to show justification." The portion of the order by the trial judge above referred to is as follows: "At the time of the trial, the court was of the opinion, and still is of the opinion, that it was not proper to charge on the presumption of innocence, under the evidence for the State and the statements of the defendants. The court concedes that in a great majority of criminal cases it is mandatory upon the court to charge the rule referred to. However, this being a homicide case and it appearing without dispute that the defendants killed the deceased, the burden rested upon them to make out such instances of justification, mitigation, or excuse. In this kind of case, under the undisputed evidence introduced by the State, it would seem to be confusing, if anything, to charge the jury on this rule when the undisputed evidence showed that the defendants killed the deceased, under circumstances which showed the deliberate intention on the part of the defendants to unlawfully kill the deceased without a semblance of justification, mitigation, or alleviation, which evidence clearly placed the burden upon the defendants to make out circumstances of justification, mitigation, or alleviation, which they utterly failed to do. In the view of this court, under the evidence in this case as to the killing of the deceased, it was incumbent upon the court to charge the jury that the burden rested upon the defendants to make out such circumstances of justification, mitigation, and alleviation, to the reasonable satisfaction of the jury, unless those circumstances appeared from evidence against them, it not being even contended that such circumstances were made out by the evidence against them, and in the opinion of the court, the rule of the presumption of innocence was properly adjudged to be superseded by the rule of the presumption of malice obtaining against these defendants under the undisputed evidence as to the killing of the deceased. It would seem that the court could decide as a matter of law in a case of this kind that the rule of presumption of innocence had been overcome and that the burden rested upon defendants. It would seem useless to charge the jury in one breath that the defendants were presumed to be innocent, and thereafter charge them that the killing was presumed to be malicious unless circumstances of justification, mitigation, or alleviation were made *Page 242 out by the defendants, when no such circumstances were shown or attempted to be shown."