Wilkerson v. State , 77 Ga. App. 55 ( 1948 )

1. Touching alibi, the rule in this State consists of two branches, viz: "The first is, that to overcome proof of guilt strong enough to exclude all reasonable doubt, the onus is on the accused to verify his alleged alibi, not beyond reasonable doubt, but to the reasonable satisfaction of the jury. The second is that, nevertheless, any evidence whatever of alibi is to be considered on the general case with the rest of the testimony, and if a reasonable doubt of guilt be raised by the evidence as a whole, the doubt must be given in favor of innocence." Harrison v. State, 83 Ga. 129 (3) (9 S.E. 542).

2. The failure of the court to charge the jury upon the second branch of the rule of alibi, on the trial of a case where a charge on the defense of alibi is required, is such error as requires the grant of a new trial. See Ledford v. State, 75 Ga. 856; Harrison v. State, 83 Ga. 129 (9 S.E. 542); Callahan v. State, 14 Ga. App. 442 (81 S.E. 380); Raysor v. State, 132 Ga. 237 (63 S.E. 786); Moody v. State, 17 Ga. App. 121 (86 S.E. 285).

3. Since the case is reversed on a special assignment of error contained in the amended motion for a new trial, the same is not considered on the general grounds.

Judgment reversed. MacIntyre, P. J., and Gardner, J.,concur.

DECIDED MAY 6, 1948. Ed Wilkerson was convicted in the Superior Court of Tattnall County of simple larceny — hog stealing. The defendant supported an alibi by the testimony of several witnesses. He filed a motion for a new trial on the general grounds which was later amended by adding one special ground, in which it is contended that the court erred in failing to charge on the second branch of the rule of alibi. Touching alibi, the court charged on the first branch only. The general charge was no sufficiently broad to include the second branch of the rule of alibi.