2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 3 - Defenses to Criminal Prosecutions
Article 2 - Justification and Excuse
§ 16-3-20. Justification

Universal Citation: GA Code § 16-3-20 (2020)

The fact that a person's conduct is justified is a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed:

  1. When the person's conduct is justified under Code Section 16-3-21, 16-3-23, 16-3-24, 16-3-25, or 16-3-26;
  2. When the person's conduct is in reasonable fulfillment of his duties as a government officer or employee;
  3. When the person's conduct is the reasonable discipline of a minor by his parent or a person in loco parentis;
  4. When the person's conduct is reasonable and is performed in the course of making a lawful arrest;
  5. When the person's conduct is justified for any other reason under the laws of this state, including as provided in Code Section 51-1-29; or
  6. In all other instances which stand upon the same footing of reason and justice as those enumerated in this article.

(Code 1933, § 26-901, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1999, p. 81, § 16; Ga. L. 2015, p. 598, § 2-2/HB 72.)

Law reviews.

- For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 63 (2015).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Application
  • Jury Instruction

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions decided under former Code 1933, §§ 26-1011 and 26-1016 prior to revision of title by Ga. L. 1968, p. 1249 are included in the annotations for this Code section.

Premise for defense under paragraph (6).

- In order to "stand upon the same footing of reason and justice," a defense of justification under O.C.G.A. § 16-3-20(6) would still have to be premised upon the asserted prevention of "imminent use of unlawful force." Hoover v. State, 198 Ga. App. 481, 402 S.E.2d 92 (1991).

Justifiable homicide is a substantive and affirmative defense. Trask v. State, 132 Ga. App. 645, 208 S.E.2d 591 (1974).

Burden of proof rests entirely upon state, even when defendant asserts affirmative defense as set out in O.C.G.A. § 16-3-20. Barnes v. State, 178 Ga. App. 205, 342 S.E.2d 388 (1986).

When a defendant raises the affirmative defense of justification and testifies to the same, the burden is on the state to disprove that defense beyond a reasonable doubt. Anderson v. State, 262 Ga. 7, 413 S.E.2d 722 (1992), overruled on other grounds, 264 Ga. 253, 443 S.E.2d 626 (1994).

Law presumes every killing to be malicious until contrary appears from circumstances of alleviation, excuse, or justification; and it is incumbent on defendant to make out such circumstances to satisfaction of jury. Mullis v. State, 196 Ga. 569, 27 S.E.2d 91 (1943) (decided under former Code 1933, § 26-1011).

When homicide is shown to have been committed by a defendant, or is admitted by a defendant, a legal presumption of malice arises, and it devolves upon the defendant to exculpate oneself from the crime and guilt of murder by showing justification, mitigation, or excuse, unless defendant's statement admitting the killing or state's evidence showing the killings, or surrounding facts and circumstances connected with such evidence or admission should themselves tend to justify or mitigate the homicide. Cady v. State, 198 Ga. 99, 31 S.E.2d 38, appeal dismissed and cert. denied, 323 U.S. 676, 65 S. Ct. 190, 89 L. Ed. 549 (1944) (decided under former Code 1933, § 26-1011).

When evidence relied upon by state discloses circumstances of justification, presumption of malice does not arise; and in such case, burden does not devolve on defendant to show such facts as would reduce homicide from murder to manslaughter or justify it. Mullis v. State, 196 Ga. 569, 27 S.E.2d 91 (1943) (decided under former Code 1933, § 26-1011).

Justification, if established under former Code 1933, § 26-1011, should always result in acquittal. Gordy v. State, 93 Ga. App. 743, 92 S.E.2d 737 (1956) (decided under former Code 1933, § 26-1011).

When justification is found, defendant is entitled to acquittal.

- Justifiable homicide is in law itself a substantive and affirmative defense, and, if found well supported in fact, the accused is entitled to an acquittal, without reference to evidence which apparently tended to convict the accused of the offense of murder or voluntary manslaughter. Fountain v. State, 207 Ga. 144, 60 S.E.2d 433 (1950), overruled on other grounds, Lavender v. State, 234 Ga. 608, 216 S.E.2d 855 (1975); Farr v. State, 83 Ga. App. 855, 65 S.E.2d 270 (1951) (decided under former Code 1933, § 26-1011).

In a prosecution for malice murder, felony murder, and aggravated assault, although no error resulted from the trial court's issuance of a sequential jury charge, because the jury found in the defendant's favor on the defense of justification as to the malice murder count, the finding also applied to the felony murder charge. Thus, the trial court erred in finding the defendant guilty of both felony murder and the underlying felony of aggravated assault. Turner v. State, 283 Ga. 17, 655 S.E.2d 589 (2008).

State carried burden of disproving justification defense.

- Trial court did not err in determining that the state carried the state's burden of introducing evidence that disproved the defendant's alleged justification for the defendant's use of deadly force because the defendant intentionally fired a gun at the defendant's fiancee and the fiancee's three children while they were sitting in the fiancee's car and it was within the jury's province to reject the defendant's contention that the defendant was afraid the fiancee was trying to run the defendant over. Williams v. State, 347 Ga. App. 171, 818 S.E.2d 88 (2018).

No verdict less than acquittal cures omission or erroneous charge of justifiable homicide.

- If, under facts of case in which defendant is charged with murder, a charge or charges on justification is authorized, and court charges erroneously on defense or defenses, no verdict less than one of acquittal could cure such error or errors. McKibben v. State, 88 Ga. App. 466, 77 S.E.2d 86 (1953) (decided under former Code 1933, § 26-1011).

Self-defense applicable to delusional compulsion defense.

- General law of self-defense was properly applied to determine whether defendant had met the justification criteria for delusional compulsion defense. Dutton v. State, 225 Ga. App. 67, 483 S.E.2d 305 (1997).

Cited in Johnson v. State, 122 Ga. App. 542, 178 S.E.2d 42 (1970); Brown v. State, 228 Ga. 215, 184 S.E.2d 655 (1971); Hewitt v. State, 127 Ga. App. 180, 193 S.E.2d 47 (1972); Highland v. State, 127 Ga. App. 518, 194 S.E.2d 332 (1972); Howard v. State, 128 Ga. App. 807, 198 S.E.2d 334 (1973); Singleton v. State, 129 Ga. App. 644, 200 S.E.2d 507 (1973); Sims v. State, 234 Ga. 177, 214 S.E.2d 902 (1975); King v. State, 134 Ga. App. 636, 215 S.E.2d 532 (1975); Henderson v. State, 136 Ga. App. 490, 221 S.E.2d 633 (1975); Ellis v. State, 137 Ga. App. 834, 224 S.E.2d 799 (1976); Colson v. State, 138 Ga. App. 366, 226 S.E.2d 154 (1976); Reaves v. State, 146 Ga. App. 409, 246 S.E.2d 427 (1978); McCane v. State, 147 Ga. App. 730, 250 S.E.2d 181 (1978); Lanham v. State, 243 Ga. 576, 255 S.E.2d 52 (1979); Carter v. State, 150 Ga. App. 119, 257 S.E.2d 11 (1979); Frazier v. State, 150 Ga. App. 343, 258 S.E.2d 29 (1979); Lemley v. State, 245 Ga. 350, 264 S.E.2d 881 (1980); Anderson v. State, 245 Ga. 619, 266 S.E.2d 221 (1980); Powell v. State, 154 Ga. App. 568, 269 S.E.2d 70 (1980); Townsend v. State, 155 Ga. App. 422, 271 S.E.2d 7 (1980); Hill v. State, 156 Ga. App. 518, 275 S.E.2d 104 (1980); Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980); Williams v. State, 249 Ga. 6, 287 S.E.2d 31 (1982); Whatley v. State, 162 Ga. App. 106, 290 S.E.2d 316 (1982); Young v. State, 163 Ga. App. 507, 295 S.E.2d 175 (1982); Millwood v. State, 164 Ga. App. 699, 296 S.E.2d 239 (1982); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982); Taylor v. State, 180 Ga. App. 200, 348 S.E.2d 582 (1986); Dukes v. State, 285 Ga. App. 172, 645 S.E.2d 664 (2007); McClendon v. State, 287 Ga. App. 238, 651 S.E.2d 165 (2007); Hudson v. State, 296 Ga. App. 692, 675 S.E.2d 578 (2009); Hines v. State, 308 Ga. App. 299, 707 S.E.2d 534 (2011).

Application

Effect of court's refusal to sever in felony murder trial.

- Trial court's refusal to sever charge of felony murder while in commission of the offense of possession of a firearm by a convicted felon does not create an irrebuttable presumption of an absence of justification. Smith v. State, 257 Ga. 468, 360 S.E.2d 591 (1987).

Evidence sufficient to show that defendant acted in self-defense.

- See Steele v. State, 166 Ga. App. 24, 303 S.E.2d 462 (1983).

Simple battery.

- Justification is a defense in a case of simple battery. Harrell v. State, 205 Ga. App. 378, 422 S.E.2d 71 (1992).

Underage drinking.

- Defendant's conviction for underaged drinking of an alcoholic beverage was upheld on appeal since the police officer smelled alcohol on the defendant's breath in the county wherein the defendant was arrested, which was enough to establish venue, pursuant to O.C.G.A. § 17-2-2(h) and, because the defendant never produced evidence that a parent or guardian gave the defendant the beer that the defendant admitted to drinking and that the possession of the beer was in the home and presence of a parent or guardian, the defendant failed to establish the affirmative defense under O.C.G.A. § 3-3-23(a)(2). Burchett v. State, 283 Ga. App. 271, 641 S.E.2d 262 (2007).

Reasonable discipline of child.

- When in prosecution for cruelty to children the state's evidence showed that the victim was a five-year old child upon whom bruises were visible on about 75 percent of the face and neck and 25 percent of the body, the trial court committed no error in refusing to charge O.C.G.A. § 16-3-20(3), as such injuries, if occasioned by defendant's acts, could not be determined to have been reasonable discipline. Bearden v. State, 163 Ga. App. 434, 294 S.E.2d 667 (1982).

Homicide defendant who relies on the "reasonable parental discipline" justification defense is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act because if the defendant is justified in administering reasonable parental discipline the defendant is guilty of no crime; if the defendant is not entitled to rely on the reasonable discipline defense, the homicide does not fall within the "lawful act" predicate of O.C.G.A. § 16-5-3(b), since in rejecting the justification claim the jury has determined that the act was not lawful. Paul v. State, 274 Ga. 601, 555 S.E.2d 716 (2001), cert. denied, 537 U.S. 828, 123 S. Ct. 123, 154 L. Ed. 2d 41 (2002).

Killing for revenge.

- It is error to charge jury that no matter what circumstances might be, killing committed in spirit of revenge is never justifiable. Crolger v. State, 88 Ga. App. 566, 77 S.E.2d 98 (1953) (decided under former Code 1933, § 26-1011).

In order to make killing justifiable on grounds that it was committed under fears of a reasonable man, an essential element is that it must appear the homicide was not committed in a spirit of revenge. Lackey v. State, 217 Ga. 345, 122 S.E.2d 115 (1961) (decided under former Code 1933, § 26-1011).

Evidence clearly authorized finding that defendant was not "justified" in escape from the county correctional institute in which defendant stipulated to being lawfully confined. Mullins v. State, 167 Ga. App. 670, 307 S.E.2d 61 (1983).

Right to resist unlawful arrest permits use of force proportionate to force being unlawfully exerted. Mullis v. State, 196 Ga. 569, 27 S.E.2d 91 (1943) (decided under former Code 1933, § 26-1011).

Prevention of planned act of adultery as justification for homicide.

- Charge which provides that if jury finds that marriage relation existed between defendant in murder trial and her purported husband, each would have mutual right to protect such relationship, and shooting of a third person by one of them to prevent adultery with the other may be justified by real or apparent necessity presented by facts and circumstances as they appear to her at moment of her interposition to prevent the adultery, was a proper charge. Drewry v. State, 208 Ga. 239, 65 S.E.2d 916 (1951) but see Burger v. State, 238 Ga. 171, 231 S.E.2d 769 (1977) (decided under former Code 1933, § 26-1016).

If wife kills another woman to prevent sexual relations between such other woman and her husband, the killing is justified provided the killing was apparently necessary to prevent commission of such sexual act. In order to justify such a killing it is not necessary that the act be in progress, or that it is to be committed then and there. It is enough if it is apparent that the killing is necessary to prevent a planned act of sexual intercourse. Scroggs v. State, 94 Ga. App. 28, 93 S.E.2d 583 (1956) but see Burger v. State, 238 Ga. 171, 231 S.E.2d 769 (1977) (decided under former Code 1933, § 26-1016).

Slaying of illicit lover by wronged spouse in order to prevent adultery is not justifiable homicide. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

It was not error for the trial court to inform the jury that a person was not justified in taking the life of a spouse's lover in order to prevent adultery. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

Since the Supreme Court has ruled that prevention of adultery does not justify the killing of an illicit lover by a spouse, and the Court of Appeals has ruled that mental anguish does not rise to the level of "great bodily harm" as it is used in O.C.G.A. § 16-3-21, an instruction that justification was a possible defense under O.C.G.A. § 16-3-20(6) was not authorized and the trial court committed no error in refusing to give it. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).

No justification.

- Conduct is not justified under O.C.G.A. § 16-3-20(6) when purpose is ensuring that one's dog gets to stay inside one's house. Mitchell v. State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 369 S.E.2d 487 (1988).

Even though the trial court charged the jury on justification in the specific context of defense of self or a third person as provided in O.C.G.A. § 16-3-21(a) and defense of property as provided in O.C.G.A. § 16-3-24, such instruction alone failed to fairly present to the jury the law on defendant's theory of the case and defendant's defense of justification. The trial court erred in failing to charge justification under O.C.G.A. § 16-3-20(6) and in failing to charge the jury on the state's burden of proving the absence of the elements of a justification defense. Nelson v. State, 213 Ga. App. 641, 445 S.E.2d 543 (1994).

Jury charge on justification was not required where the evidence, including defendant's own statements, showed that the victim was shot as the victim was trying to leave the premises and there was no hint of confrontation with defendant or that defendant was fearful for own safety or that of others. Bowden v. State, 270 Ga. 19, 504 S.E.2d 699 (1998).

Grounds for justification outlined in O.C.G.A. § 16-3-20 did not include a desire not to wake a sleeping child as justification for disobeying lawful orders of an officer, and, thus, the state disproved that affirmative defense to the charge against defendant of obstruction of an officer. Arsenault v. State, 257 Ga. App. 456, 571 S.E.2d 456 (2002).

Trial court erred in finding that a guardian had proved by a preponderance of the evidence, as required under O.C.G.A. § 19-13-3(a), that a parent committed an act of family violence pursuant to O.C.G.A. § 19-13-1, as there was insufficient evidence that the parent committed an act of violence, specifically simple battery in violation of O.C.G.A. § 16-5-23, as opposed to administering reasonable discipline in the form of corporal punishment, as O.C.G.A. § 16-5-23 specifically exempted corporal punishment from the definition of battery, and the appellate court determined after considering O.C.G.A. § 16-3-20 and O.C.G.A. § 20-2-731 that the alleged action of the parent in slapping the child did not arise to the level of unreasonable discipline. Buchheit v. Stinson, 260 Ga. App. 450, 579 S.E.2d 853 (2003).

Jury was authorized to find that the defendant's resistance to being arrested after the defendant pushed and hit another officer was not legally justified under O.C.G.A. § 16-3-20 because the jury was authorized to disbelieve the defendant's claim that the defendant was attempting to get medical assistance for the defendant's parent who was having a seizure, and to reject that defense. Harris v. State, 276 Ga. App. 234, 622 S.E.2d 905 (2005).

Because the defendant failed in the burden of proving that the evidence of specific acts of violence by the victim should be admitted, and testimony did not establish that the event occurred before the defendant's attack on the victim, the trial court's ruling that there was no evidence to support a defense of justification was not clearly erroneous. Cross v. State, 285 Ga. App. 518, 646 S.E.2d 723 (2007), cert. denied, No. S07C1479, 2007 Ga. LEXIS 680 (Ga. 2007).

Defendant did not present sufficient evidence to show justification for the victim's murder because multiple witnesses testified that the defendant came out from the defendant's hiding place behind the victim and loudly taunted the victim as the defendant fired the defendant's weapon; the defendant admitted surreptitiously following the victim and then taunting the victim as the defendant fired; several witnesses testified the victim was standing with the victim's back to the defendant when shots rang out and before the victim fired a shot; and the jury could conclude the defendant pursued the victim and the victim's friend, laid in wait to shoot the victim, and commenced shooting when the victim's back was turned to the defendant. McCray v. State, 301 Ga. 241, 799 S.E.2d 206 (2017).

Ineffective assistance not found as evidence did not support justification defense.

- Trial counsel's failure to introduce evidence of the defendant's mental health history was not ineffective assistance of counsel as a prior shooting, in which the defendant was shot, could not support a justification defense. Harris v. State, 279 Ga. 304, 612 S.E.2d 789 (2005).

Counsel ineffective when evidence of victim's prior act of violence not admitted.

- When the defendant presented a prima facie case of justification, counsel was ineffective in not introducing evidence of a prior act of violence by the victim based on counsel's mistaken belief that such an act had to have occurred prior to the act being tried in order to be admissible. The error was not harmless as the assault, which like the charged crime involved an assault with a gun upon a man leaving the residence of the victim's ex-spouse, was highly relevant to the sole defense of justification. Bennett v. State, 298 Ga. App. 464, 680 S.E.2d 538 (2009).

Battered person defense not allowed.

- In a prosecution for child molestation, defendant was not allowed to assert a battered person defense since the criminal acts were directed toward nonaggressor victims and self-defense was not an issue in the case. Graham v. State, 239 Ga. App. 429, 521 S.E.2d 249 (1999).

In a prosecution for possession of marijuana, defendant was not entitled to an instruction on justification based on defendant's use of marijuana for certain physical ailments. Carlson v. State, 240 Ga. App. 589, 524 S.E.2d 283 (1999).

There was no error in the refusal to admit expert testimony regarding the battered person syndrome to support the defendant's justification defense of coercion at the defendant's trial for various assault crimes committed against the defendant's nine-year-old child. Pickle v. State, 280 Ga. App. 821, 635 S.E.2d 197 (2006), cert. denied, No. S06C2150, 2007 Ga. LEXIS 110, 111 (Ga. 2007).

Self-defense applicable to delusional compulsion defense.

- General law of self-defense was properly applied to determine whether the defendant had met the justification criteria for delusional compulsion defense. Dutton v. State, 225 Ga. App. 67, 483 S.E.2d 305 (1997).

Prima facie case of justification established.

- Because the state's evidence established a prima facie case of justification through the defendant's statement, in which the defendant claimed to have shot the victim out of self-defense, it was error to refuse to admit evidence of violence by the victim toward a third party unless the defendant testified. The error, which implicated the Fifth Amendment, was not harmless because when the defendant took the stand, the state was able on cross-examination to undermine the defense by showing that the defendant had been able to disarm the victim in the past by using the defendant's military training. Williams v. State, 298 Ga. App. 151, 679 S.E.2d 377 (2009).

Defense unavailable when defendant did not admit to crimes charged.

- Trial court properly refused to allow the defendant, who was charged with obstructing an officer, to testify as to the defendant's state of mind in order to prove the defense of justification; because the defendant did not admit to the crimes charged, the defense of justification was not available. Ojemuyiwa v. State, 285 Ga. App. 617, 647 S.E.2d 598 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Jury free to reject defense.

- Jury was free to accept the evidence that the shootings were not done in self-defense or in defense of another person, including the defendant's own inculpatory statements, and to reject any evidence offered by the defendant in support of a justification defense. Harris v. State, 279 Ga. 304, 612 S.E.2d 789 (2005).

Prima facie showing of justification.

- Defendant, who claimed to have acted in self-defense when the defendant beat the victim with a pipe, made a prima facie showing of justification. The defendant testified that the victim approached the defendant, uttered a racial epithet, and threatened to shoot the defendant, and the defendant claimed that the defendant feared for the defendant's life because the defendant knew of the victim's reputation and had previously seen the victim with a pistol in the victim's jeans. Bennett v. State, 298 Ga. App. 464, 680 S.E.2d 538 (2009).

Jury Instruction

Absent request, charge on justification not required if raised solely by defendant's statement. McKibben v. State, 88 Ga. App. 466, 77 S.E.2d 86 (1953) (decided under former Code 1933, § 26-1011).

Judge may construct a charge upon various issues made by evidence, and if defense is set up in statement alone, it is not error for judge to omit submitting law appropriate to such defense, in absence of timely written request. Pope v. State, 76 Ga. App. 288, 45 S.E.2d 681 (1947) (decided under former Code 1933, § 26-1011).

In a trial in which the defendant claimed that the defendant was wrongfully threatened by a drug dealer that if the defendant did not fatally shoot a victim, then the dealer would harm the defendant and the defendant's family members, and accordingly, the defendant shot the victim and then hid the victim's body in a shallow grave until such time as the defendant confessed to the crime 10 years later, the trial court properly refused to instruct the jury on justification pursuant to O.C.G.A. § 16-3-20(6), as the defendant's criminal acts were directed toward a non-aggressor victim and there was no evidence that the defendant or any family members were threatened with "imminent death or great bodily injury"; furthermore, a coercion defense under O.C.G.A. § 16-3-26 would not be applicable to a charge of murder. Gravitt v. State, 279 Ga. 33, 608 S.E.2d 202 (2005).

In a prosecution for driving under the influence and making an improper lane change, because the defendant did not request instructions on accident and justification, the trial court did not err in failing to give those instructions; moreover, because the jury was charged on involuntary intoxication, the failure to charge on accident was not harmful as a matter of law. Walker v. State, 280 Ga. App. 393, 634 S.E.2d 177 (2006).

Where court charges on justification, even though not raised at trial, defendant cannot complain.

- If issue of justification is not raised by evidence or defendant's statement, but, nevertheless, court charges, either correctly or incorrectly, on justification, defendant cannot complain, as court under these circumstances has given or attempted to give defendant benefit of a defense to which defendant was not entitled. McKibben v. State, 88 Ga. App. 466, 77 S.E.2d 86 (1953) (decided under former Code 1933, § 26-1011).

O.C.G.A. § 40-6-395(a) was not unconstitutional merely because the statute failed to include a provision for the exercise of a fundamental right of self-defense, given the statutory defense that the fact that a person's conduct was justified remained a defense to the prosecution for any crime based on that conduct; moreover, the defendant was permitted to present evidence of justification, and the trial court instructed the jury that justification was a defense and could be claimed when the person's conduct was justified for any reason under the law or in all other instances based on similar reason and justice. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006).

Defendant entitled to a charge as to justification.

- When a defendant was charged with possession of a firearm by a convicted felon, the defendant was entitled to a charge as to justification, the only defense defendant claimed; when the court refused to so charge, and charged merely the language of O.C.G.A. § 16-11-131, this was tantamount to a directed verdict, requiring reversal. Little v. State, 195 Ga. App. 130, 392 S.E.2d 896 (1990).

When the defendant testified that he drove without a license because his wife was experiencing labor pains, the doctor said he needed to see her, and she could not drive herself to the doctor's office, a jury could have found that his decision to seek medical help for his wife and their soon-to-be-born child stands on "the same footing of reason and justice" as a government employee's reasonable fulfillment of his duties, a parent's reasonable discipline of a child, and a person's reasonable conduct in performing a citizen's arrest. Tarvestad v. State, 261 Ga. 605, 409 S.E.2d 513 (1991).

Trial court's failure to charge the jury on justification as a defense to the crime of impersonating an officer was reversible error since defendant's sole defense was justification. Wells v. State, 200 Ga. App. 104, 407 S.E.2d 86 (1991).

When the defendant's testimony provided "some" evidence in support of defendant's justification defense based on a claim of self-defense, the trial court's refusal to charge the jury on this sole defense was reversible error, even though the defendant was a convicted felon and not authorized by law to possess a firearm. Jones v. State, 220 Ga. App. 784, 470 S.E.2d 326 (1996).

In a prosecution for interference with government property, the court improperly refused to charge the jury with regard to justification where: (1) it was undisputed that the defendant had high blood pressure and allergies and that pepper spray with which defendant was sprayed caused defendant acute respiratory distress; (2) while seated in a police cruiser, defendant screamed for air, gagged, and bodily secretions streamed down defendant's face; (3) although an officer cracked one window a few inches, this brought the defendant no relief; and (4) defendant kicked out the window to ease the symptoms. Moore v. State, 234 Ga. App. 332, 506 S.E.2d 685 (1998).

Defendant was entitled to a jury charge on the affirmative legal defense of justification on the charge of failure to maintain a lane, which was defendant's sole defense, since the testimony could support that charge. Smith v. State, 250 Ga. App. 532, 552 S.E.2d 499 (2001).

Defendant was not entitled to an instruction on the defense of justification regarding a charge of possession of a firearm as a convicted felon because the defendant did not present evidence of any imminent threat or other present threat of death or serious bodily harm either to the defendant or to a third party. Branton v. State, 292 Ga. App. 104, 663 S.E.2d 414 (2008), cert. denied, No. S08C1771, 2008 Ga. LEXIS 873 (Ga. 2008).

In a prosecution for kidnapping the defendant's former lawyer and law firm employees, the defendant was not entitled to a jury instruction on a justification defense under O.C.G.A. § 16-3-20(5) or (6) as the defendant did not identify any reason under state law that would have justified such conduct, the defendant had no duty to act on behalf of a third party, and there was no need for prompt action. Brower v. State, 298 Ga. App. 699, 680 S.E.2d 859 (2009), cert. denied, No. S09C1845, 2010 Ga. LEXIS 13 (Ga. 2010), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).

Trial court did not err in refusing to charge the jury on the defense of justification because the defendant made no attempt to argue how the defendant's subjective, drug-influenced belief that the defendant was being pursued across the state by unidentified men with Uzis supported the application of a justification defense; defendant's fear, which was based upon an earlier encounter with unidentified men, could not provide justification for the crimes because there was no immediate threat of would-be assassins at the time of the crimes but only a pursuit by law enforcement vehicles with lights flashing and sirens blaring. Luke v. State, 306 Ga. App. 701, 703 S.E.2d 335 (2010).

Circumstances did not support a charge on justification because the defendant's argument that the defendant did not intend to commit any crime could be contradicted by a defense that the defendant acted intentionally but was justified in doing so; while a defendant may choose to pursue alternative defense theories, the trial court has no obligation to charge the jury sua sponte on all possible theories of defense. Luke v. State, 306 Ga. App. 701, 703 S.E.2d 335 (2010).

Defendant was not entitled to a jury instruction on justification because, under the defendant's version of events, the damage to the parked cars resulted from an unavoidable accident; the defendant's testimony as to the reasons for the decision to steer the truck towards the parked cars, to avoid people, served to support the defendant's accident defense, and such a position was inconsistent with a justification defense. Jackson v. State, 329 Ga. App. 240, 764 S.E.2d 569 (2014).

Trial court did not err in not charging the jury on the omnibus justification defense because the defendant's argument that the defendant feared for the lives of the defendant's family at the hands of a codefendant, as well as the defendant's own life, if the defendant did not do what the codefendant wished did not fall under the omnibus justification defense as there was not a current or imminent threat because there was no evidence that the codefendant was in a position to harm the defendant's family when the defendant committed the acts. Allen v. State, 296 Ga. 785, 770 S.E.2d 824 (2015).

Trial court did not err by failing to instruct the jury on the defenses of accident and justification as the defendant denied shaking the baby and, given the undisputed evidence regarding the number and severity of the child's injuries, the amount of force required to inflict the injuries, and that such injuries could not have been inflicted by accident, it was unlikely the jury would have found in the defendant's favor on either defense. Noel v. State, 297 Ga. 698, 777 S.E.2d 449 (2015).

In a case of elder abuse, the trial court did not err in failing to instruct the jury on justification because the victim, the defendant's mother, was living with the defendant as a result of the defendant's own actions in discharging the victim from the nursing center and choosing to be the victim's care giver and there was no evidence that indicated that the victim was in such immediate danger that the defendant had to tie the victim to the bed instead of utilizing other options that were available. Haynes v. State, 337 Ga. App. 433, 787 S.E.2d 776 (2016), cert. denied, No. S16C1776, 2017 Ga. LEXIS 64 (Ga. 2017).

Charge as to justification not misleading or confusing.

- In a trial for aggravated assault, the jury charge as to justification was not misleading or confusing; the charge made it clear that the state bore the burden of proving both elements of aggravated assault under the indictment and that defendant's use of force was not justified beyond a reasonable doubt. White v. State, 291 Ga. App. 249, 661 S.E.2d 865 (2008).

Defendant was not required to admit criminal conduct to be entitled to a charge on justification.

- In the defendant's aggravated assault trial, O.C.G.A. § 16-5-21(a)(2), based on the defendant aiming a BB rifle at two victims, the trial court erred in denying the defendant's requested jury instructions on the defense of self and habitation, on the basis that the defendant did not admit aiming at the victims; if slight evidence supported the defenses, the charges should have been given. Defendant was not required to admit the elements of the crime in order to argue the defendant's theory of defense. McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).

When specific instruction unnecessary.

- Court did not err in failing to specifically charge the jury on the law of justification and coercion since the charge and the evidence as a whole adequately and fairly presented the defendant's theories of the case, that is, that the defendant was only incidentally involved in the commission of the crimes (armed robbery and kidnapping), and the defendant's testimony was not that the defendant was coerced into commission of the crime, but that the defendant on the defendant's own initiative had robbed the victim and forced the victim into the automobile, that the defendant was at all times attempting to talk the codefendant out of committing the crime, and that the defendant had nothing to do with either the robbery or the kidnapping. Mallory v. State, 166 Ga. App. 812, 305 S.E.2d 656 (1983).

Ineffective assistance not found.

- Trial court properly denied the defendant's request for a justification charge as there was no evidence to authorize such charge under O.C.G.A. § 16-3-20 since the defendant was not acting in self-defense, defense of others, or habitation; nor was the defendant's conduct justified under the statute. Stanford v. State, 259 Ga. App. 188, 576 S.E.2d 594 (2003).

Defendant did not receive ineffective assistance of counsel based on defense counsel withdrawal of a request for a justification instruction as the defendant's testimony that the defendant did not act with the intent to inflict injury on a former love interest did not support an instruction on justification. Alston v. State, 277 Ga. App. 117, 625 S.E.2d 475 (2005).

Defense counsel was not ineffective for failing to request for a jury charge on justification in accordance with O.C.G.A. § 16-3-20(6) as the defendant could not show that the defendant was justified in firing shots at the victim since the victim had only fired the victim's gun one time in the air and then was in a car and leaving at the time that the defendant and the codefendant fatally shot back. Stinchcomb v. State, 280 Ga. 170, 626 S.E.2d 88 (2006).

Defendant's trial counsel did not render ineffective assistance by failing to request a charge that was not adjusted to the facts of the case; moreover, the trial court properly charged on the defenses of self-defense and the defense of others, as requested. Davenport v. State, 283 Ga. 171, 656 S.E.2d 844 (2008).

Trial counsel was not ineffective for failing to object to the trial court's jury charge on justifiable parental discipline, O.C.G.A. § 16-3-20(3), because the trial court was authorized to give a justifiable parental discipline jury charge that was adequately adjusted to the evidence in the case; because it was for the jury to decide whether or not the codefendant's conduct caused the victim to suffer cruel or excessive physical pain, any objection to the trial court's jury charge on justifiable parental discipline would have lacked merit. Tabb v. State, 313 Ga. App. 852, 723 S.E.2d 295 (2012).

Counsel was not ineffective for failing to ask for a charge to support a justification defense and instead seeking a charge to support a coercion defense because coercion was a defense to the charged crimes of aggravated assault and fleeing and attempting to elude, and the defendant failed to show that an unspecified justification charge would have been more beneficial to the defendant than the coercion charge given by the trial court. Frazier v. State, Ga. , 845 S.E.2d 579 (2020).

Sua sponte instruction not warranted.

- Trial court did not err in failing to sua sponte give an instruction on justification because the defendant's testimony that the defendant did not act with the intent to inflict injury on a former love interest did not support an instruction on justification. Alston v. State, 277 Ga. App. 117, 625 S.E.2d 475 (2005).

OPINIONS OF THE ATTORNEY GENERAL

Reasonable force permissible in arresting person reasonably believed to be aiding escape.

- If correctional officer reasonably believes persons in aircraft landing inside perimeter of correctional facility are aiding or attempting to aid an escape, then the officer is entitled to make an arrest of those persons. To effectuate this arrest the officer is justified in using reasonable force. 1981 Op. Att'y Gen. No. 81-90.

Extent of force permissible in disabling aircraft landing inside perimeter of correctional facility. See 1981 Op. Att'y Gen. No. 81-90.

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Arrest, § 1 et seq. 6 Am. Jur. 2d, Assault and Battery, §§ 29, 105. 39 Am. Jur. 2d, Guardian and Ward, § 63. 40A Am. Jur. 2d, Homicide, § 128 et seq. 59 Am. Jur. 2d, Parent and Child, §§ 9, 25 et seq. 63C Am. Jur. 2d, Public Officers and Employees, § 286 et seq.

C.J.S.

- 22 C.J.S., Criminal Law: Substantive Principles, §§ 59, 119. 67A C.J.S., Parent and Child, §§ 12, 155.

ALR.

- Duty to retreat to wall as affected by illegal character of premises on which homicide occurs, 2 A.L.R. 518.

Acquittal on charge as to one as bar to charge as to the other, where one person is killed or assaulted by acts directed at another, 2 A.L.R. 606.

Right of self-defense as affected by defendant's violation of law only casually related to the encounter, 10 A.L.R. 861.

Voluntary intoxication as defense to homicide, 12 A.L.R. 861; 79 A.L.R. 897.

Criminal law: criminal responsibility of peace officers for killing or wounding one whom they wished to investigate or identify, 18 A.L.R. 1368; 61 A.L.R. 321.

Right of one in loco parentis other than teacher to punish child, 43 A.L.R. 507.

Presumption that public officers have properly performed their duty, as evidence, 141 A.L.R. 1037.

Proof to establish or negative self-defense in civil action for death from intentional act, 17 A.L.R.2d 597.

Pleading self-defense or other justification in civil assault and battery action, 67 A.L.R.2d 405.

Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.

Retaking of money lost in gambling as robbery or larceny, 77 A.L.R.3d 1363.

Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309.

"Choice of evils," necessity, duress, or similar defense to state or local criminal charges based on acts of public protest, 3 A.L.R.5th 521.

Automobiles: necessity or emergency as defense in prosecution for driving without operator's license or while license is suspended, 7 A.L.R.5th 73.

Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense, 8 A.L.R.5th 713.

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