2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 3 - Defenses to Criminal Prosecutions
Article 2 - Justification and Excuse
§ 16-3-28. Affirmative Defenses

A defense based upon any of the provisions of this article is an affirmative defense.

(Code 1933, § 26-907, enacted by Ga. L. 1968, p. 1249, § 1.)

- For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008).

Affirmative defense admits doing act charged, but seeks to justify, excuse, or mitigate it. Cowart v. State, 136 Ga. App. 528, 221 S.E.2d 649 (1975), aff'd, 237 Ga. 282, 227 S.E.2d 248, overruled on other grounds, 137 Ga. App. 735, 224 S.E.2d 856 (1976).

- Charges which place any burden of persuasion upon defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error and invited error; even when defendant raises one of the affirmative defenses defined in the Criminal Code (see now O.C.G.A. Ch. 3, T. 16), the burden of proof still rest entirely upon the state as it does with all other issues in the case. State v. McNeill, 234 Ga. 696, 217 S.E.2d 281 (1975); Perkins v. State, 151 Ga. App. 199, 259 S.E.2d 193 (1979).

Trial court erred in failing to charge the jury that the state had the burden of disproving defendant's affirmative defense of accident beyond a reasonable doubt. Griffin v. State, 267 Ga. 586, 481 S.E.2d 223 (1997).

Burden of putting forward affirmative defense is on defendant, though the state has the burden of disproving the affirmative defense beyond a reasonable doubt. State v. McNeill, 234 Ga. 696, 217 S.E.2d 281 (1975).

Defendant need not negate any elements of crime which state must prove to convict. Holloway v. McElroy, 241 Ga. 400, 245 S.E.2d 658 (1978).

Burden placed on defendant to excuse homicide is an affirmative defense. Holloway v. McElroy, 241 Ga. 400, 245 S.E.2d 658 (1978).

- Mistake of fact defense was not applicable because the defendant did not admit participation in the murder and, in fact, denied any involvement. Murphy v. State, 280 Ga. 158, 625 S.E.2d 764 (2006).

For discussion of entrapment as affirmative defense, see State v. McNeill, 234 Ga. 696, 217 S.E.2d 281 (1975).

Cited in Chambers v. State, 127 Ga. App. 196, 192 S.E.2d 916 (1972); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982); Aleman v. State, 227 Ga. App. 607, 489 S.E.2d 867 (1997); Norris v. State, 227 Ga. App. 616, 489 S.E.2d 875 (1997); Manning v. State, 231 Ga. App. 584, 499 S.E.2d 650 (1998); Graham v. State, 239 Ga. App. 429, 521 S.E.2d 249 (1999); Bailey v. State, 245 Ga. App. 852, 539 S.E.2d 191 (2000); Mathis v. State, Ga. App. , S.E.2d (May 20, 2009); Hines v. State, 308 Ga. App. 299, 707 S.E.2d 534 (2011).

RESEARCH REFERENCES

ALR.

- Homicide: modern status of rules as to burden and quantum of proof to show self-defense, 43 A.L.R.3d 221.