2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 8 - Trial
Article 3 - Conduct of Proceedings
§ 17-8-56. Writing Out and Reading of Charge to Jury; Filing of Charge; Furnishing of Copies of Charge

Universal Citation: GA Code § 17-8-56 (2020)
  1. The judges of the superior, state, and city courts shall, when the counsel for either party requests it before argument begins, write out their charges and read them to the jury; and it shall be error to give any other or additional charge than that so written and read.
  2. The charge so written out and read shall be filed with the clerk of the court in which it was given and shall be accessible to all persons interested in it. The clerk shall give certified copies of the charge to any person applying therefor, upon payment of the usual fee.
  3. This Code section shall not apply when there is an official stenographer or reporter of the court in attendance thereon who takes down in shorthand and writes out the full charge of the trial judge in the case upon the direction of court.

(Ga. L. 1860, p. 42, §§ 1, 2; Code 1863, §§ 240, 241; Code 1868, §§ 234, 235; Code 1873, §§ 244, 245; Ga. L. 1877, p. 13, § 1; Ga. L. 1878-79, p. 150, § 1; Code 1882, §§ 244, 245; Civil Code 1895, §§ 4318, 4319; Penal Code 1895, §§ 1030, 1031; Ga. L. 1897, p. 41, § 1; Civil Code 1910, §§ 4847, 4848; Penal Code 1910, §§ 1056, 1057; Code 1933, §§ 81-1102, 81-1103; Ga. L. 1943, p. 262, § 1; Ga. L. 1983, p. 884, § 3-21; Code 1981, §17-8-56, as redesignated by Ga. L. 1985, p. 1190, § 1.)

Cross references.

- Corresponding provision relating to civil procedure, § 9-10-5.

Editor's notes.

- Former Code Section 17-8-54 was redesignated as this Code section by Ga. L. 1985, p. 1190, § 1.

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Practice and Procedure
  • Appellate Review

General Consideration

Purpose of reducing charge to writing and reading charge to jury.

- Principal object in requiring the charge to be reduced to writing and read as written to the jury, and then filed with the clerk of the court, is to prevent disputes between the judge and counsel as to what was the charge. Moyers v. State, 61 Ga. App. 324, 6 S.E.2d 438 (1939).

Provisions of this section are mandatory. Strickland v. State, 6 Ga. App. 536, 65 S.E. 300 (1909); Walker v. State, 10 Ga. App. 85, 72 S.E. 531 (1911); Brindle v. State, 17 Ga. App. 741, 88 S.E. 460 (1916); Roberts v. State, 59 Ga. App. 115, 200 S.E. 474 (1938).

Refusal to comply with statute is ground for reversal. Strickland v. State, 6 Ga. App. 536, 65 S.E. 300 (1909); Walker v. State, 10 Ga. App. 85, 72 S.E. 531 (1911); Brindle v. State, 17 Ga. App. 741, 88 S.E. 460 (1916).

Effect of § 15-14-3. - Former Code 1882, §§ 244, 245 (see O.C.G.A. § 17-8-56) was not repealed by former Code 1933, § 24-3102 (see O.C.G.A. § 15-14-3) providing for the appointment of an official court reporter. Bowden v. Achor, 95 Ga. 243, 22 S.E. 254 (1895); Brindle v. State, 17 Ga. App. 741, 88 S.E. 460 (1916).

Judge must charge all law on the subject that is material and applicable.

- When a judge undertakes to charge the law on any subject the judge must charge all of the law which is material and applicable to the case. Clinton v. State, 41 Ga. App. 661, 154 S.E. 377 (1930).

Reading of Code section as charge.

- It is sufficient compliance if the judge reads the section verbatim from the Code itself, noting accurately in the judge's charge the section so read. Walton v. State, 17 Ga. App. 375, 86 S.E. 1072 (1915).

Sufficiency of notation when Code section read as charge.

- Notation as to the Code section read must be accurate. Walker v. State, 8 Ga. App. 214, 68 S.E. 873 (1910); Hays v. State, 10 Ga. App. 823, 74 S.E. 314 (1912), later appeal, 14 Ga. App. 604, 81 S.E. 914 (1914); Whitaker v. State, 11 Ga. App. 208, 75 S.E. 258 (1912).

When the notations made in a written charge leave in doubt what statute was read to the jury, a new trial will be granted if the evidence does not demand the verdict. Walker v. State, 8 Ga. App. 214, 68 S.E. 873 (1910); Hays v. State, 10 Ga. App. 823, 74 S.E. 314 (1912), later appeal, 14 Ga. App. 604, 81 S.E. 914 (1914).

Charge as to lesser included crimes.

- Written application must be made to the trial judge at or before the close of the evidence, requesting a charge on lesser crimes that are included in those set forth in the indictment or accusation, and the trial judge's failure to do so, without a written request, is not error. Cross v. State, 150 Ga. App. 206, 257 S.E.2d 330 (1979).

Cited in Homer v. State, 6 Ga. App. 667, 65 S.E. 701 (1909); Walton v. State, 33 Ga. App. 48, 125 S.E. 511 (1924); Smith v. State, 65 Ga. App. 66, 15 S.E.2d 272 (1941); White v. State, 151 Ga. App. 559, 260 S.E.2d 554 (1979).

Practice and Procedure

Use of recess to write out charges.

- Judge should take a recess, if necessary, to secure time to write out the judge's charges. Homer v. State, 6 Ga. App. 667, 65 S.E. 701 (1909).

Additional instruction when instructions have not been reduced to writing on request of counsel.

- When the trial court, without the request of counsel for the defendant or for the state, wrote out the court's instructions to the jury, and, without reading such instructions to the jury, announced to the jury that such was the court's written charge, and had the bailiff hand the charge to a juror, who took the charge with the juror to the jury room and, just as the jury was in the act of retiring to consider the jury's verdict, the trial court gave an additional charge, such an action was not error as contravening that portion of this section which prohibits the giving of additional charges to the jury when the trial court has, on request of counsel, reduced the court's charge to writing. Woodard v. State, 91 Ga. App. 374, 85 S.E.2d 723 (1955).

Additional charge given upon request of the jury.

- If the prisoner's counsel requests the court to give the court's charge to the jury in writing, and after complying with the request, the court gives orally additional charges, it is cause for a new trial, although the additional charges are given upon a request of the jury for further instruction. Jones v. State, 63 Ga. 456 (1879); Willis v. State, 89 Ga. 188, 15 S.E. 32 (1892).

When the jury returns and asks for additional instruction which the court gives, in part from the original written charge and in part outside thereof, and refiles the original charge and reduces the part of the recharge given outside of the original charge to writing and then reads the charge to the jury, and files the charge with the clerk, the court has not committed reversible error. Moyers v. State, 61 Ga. App. 324, 6 S.E.2d 438 (1939).

As to what is not an additional charge, see Dowling v. State, 7 Ga. App. 613, 67 S.E. 697 (1910).

Delay in filing charges is not necessarily reversible error.

- Under this section failure to immediately file the written charge is not error. The only requirement of this section is that when requested, the charge be written out and read by the judge as written, and filed with the clerk so as to be accessible to all persons interested in the charge. Sherwood v. State, 33 Ga. App. 49, 125 S.E. 512 (1924).

When it appears that the charge has been duly filed in the clerk's office, the fact that the charge was retained by the trial court for some time prior thereto is not necessarily error requiring reversal. Fitzgerald v. State, 82 Ga. App. 521, 61 S.E.2d 666 (1950).

Failure to file instructions not given on request of a party.

- When the trial judge, without the request of counsel for either the defendant or the state, writes out an instruction to the jury, and does not have the charge filed with the clerk of the court, such inaction constitutes no violation of the provisions of this section as this section requires the trial court to file only those charges to the jury which have been reduced to writing upon the timely request of counsel for one of the parties. Woodard v. State, 91 Ga. App. 374, 85 S.E.2d 723 (1955).

Failure to show on appeal that requested charge not substantially covered by charge given.

- If error is assigned upon a refusal of the trial judge to give certain requested instructions to the jury, and it is not shown that the request was not substantially covered by the charge given by the court, and the entire charge is not brought up, the court on appeal is unable to determine whether such refusal was erroneous or not. Perdue v. State, 17 Ga. App. 299, 86 S.E. 661 (1915).

Part of charge may be inapplicable.

- It is not usually cause for new trial that entire Code section is given even though part of the charge may be inapplicable under the facts in evidence. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982).

Charge need not be given in exact language of request.

- Charge is to be considered as a whole, and when the charge covers the subject matter of the request, it is not error although not in the exact language of the request. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982).

Consideration of entire charge.

- Charge of the court must always be considered as a whole in determining whether a particular portion thereof amounts to harmful or reversible error; and, when the charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, an appellate court will not reverse a verdict authorized by the evidence. Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 277 S.E.2d 753 (1981).

Language used in charge.

- In absence of request, court's failure to define meaning of terms used in charge is not ordinarily ground for reversal. Parker v. State, 157 Ga. App. 521, 278 S.E.2d 99 (1981).

Language which is appropriate when contained in opinion by reviewing court may be improper when embodied in jury charge. Lofton v. State, 157 Ga. App. 447, 278 S.E.2d 94 (1981).

Charge in a justification defense.

- Jury instruction that "where the defense of justification is offered, it is the duty of the jury to consider it along with all the testimony in this case, and if the evidence, taken as a whole, raises reasonable doubt in the mind of the jury of the defendant's guilt, then you should acquit him" did not shift the burden of proof in the defendant's case; however, this charge should not be given in the future. Though not burden-shifting, the charge could have the possibility of being confusing in a close case. Preston v. State, 282 Ga. 210, 647 S.E.2d 260 (2007).

Essential elements of crime must be charged.

- When certain legal offenses (i.e., felony, murder) constitute elements of the crime charged (i.e., criminal solicitation), even in the absence of a request to so charge, the trial court errs in failing to provide the jury with the legal definitions of the elemental crimes. The court will not presume, in the absence of a proper instruction from the court, that a jury is cognizant of the legal definition of an underlying offense and will apply the appropriate legal standard in deciding the case. Essuon v. State, 286 Ga. App. 869, 650 S.E.2d 409 (2007).

Slip of the tongue in giving charge not reversible error.

- Mere verbal inaccuracy in a charge, which results from a palpable slip of the tongue, and clearly could not have misled or confused the jury, is not reversible error. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981).

Transcribing of charge by court reporter obviates section's requirements.

- When trial court failed to file with court clerk the court's written charge as read to the jury, but had an official court reporter take down the full charge, transcribe the charge, and include the charge as part of the trial transcript, the requirement of O.C.G.A. § 17-8-56 that the charge be filed with the clerk of the court was obviated. Simmons v. State, 172 Ga. App. 695, 324 S.E.2d 546 (1984).

Appellate Review

In order to preserve the issue of proper jury instruction for appeal, the defendant must object to a charge or state that the defendant reserves the objections. Robinson v. State, 176 Ga. App. 18, 335 S.E.2d 303 (1985).

Charge in terms of "the law presumes" not automatically reversible error.

- While the Supreme Court has expressly disapproved of criminal jury instruction cast in terms of "the law presumes" the use of such terminology does not automatically lead to reversal; rather, the entire charge must be examined to determine whether a reasonable juror could interpret the charge as (1) creating a conclusive presumption or (2) burden shifting. Wells v. State, 247 Ga. 792, 279 S.E.2d 213 (1981).

Refusal to charge on issue not raised by evidence.

- If evidence at trial does not raise the issue, the trial court does not err in refusing to charge on voluntary manslaughter. Larkin v. State, 247 Ga. 586, 278 S.E.2d 365 (1981).

Charge permissible as to inference to be drawn from acts of defendant.

- Trial court's charge that the jury could infer that the acts of a person of sound mind and discretion are the products of a person's will and that the jury could infer that a person of sound mind and discretion intends the natural and probable consequences of a person's acts, but that whether or not the jury made any such inference was a matter solely within the jury's discretion, was not impermissibly burden shifting since such instruction not only told the jury what the law presumed but also informed the jury that the jury had a choice. Duke v. State, 158 Ga. App. 71, 279 S.E.2d 476 (1981).

RESEARCH REFERENCES

C.J.S.

- 89 C.J.S. (Rev), Trial, §§ 573, 574, 727 et seq.

ALR.

- Duty of court in criminal case, in absence of request, to charge with respect to circumstantial evidence, 15 A.L.R. 1049.

Failure of instruction on reasonable doubt to include phrase "lack of evidence" or equivalent as reversible error, 67 A.L.R. 1372.

Propriety of instruction in criminal case as to the importance of enforcement of law, or duty of jury in that regard, 124 A.L.R. 1133.

Propriety and effect, in criminal case, of use of alias of accused in instructions to jury, 87 A.L.R.2d 1217.

Propriety of specific jury instructions as to credibility of accomplices, 4 A.L.R.3d 351.

Prejudicial effect of statement or instruction of court as to possibility of parole or pardon, 12 A.L.R.3d 832.

Propriety of reference, in instruction in criminal case, to jurors' duty to God, 39 A.L.R.3d 1445.

Modern status of law regarding cure of error, in instruction as to one offense, by conviction of higher or lesser offense, 15 A.L.R.4th 118.

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