The defense of alibi involves the impossibility of the accused's presence at the scene of the offense at the time of its commission. The range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence.
(Penal Code 1895, § 992; Penal Code 1910, § 1018; Code 1933, § 38-122.)
Law reviews.- For note discussing Smith v. Smith, 454 F.2d 572 (5th Cir. 1971), rehearing and rehearing en banc denied February 1, 1972, see 23 Mercer L. Rev. 977 (1972). For comment on Parham v. State, 120 Ga. App. 723, 171 S.E.2d 911 (1969) and the rejection of charge that defendant must prove alibi to the satisfaction of the jury, see 21 Mercer L. Rev. 511 (1970). For comment on Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), refusing to apply decision holding Georgia's alibi instruction unconstitutional retroactively, see 9 Ga. St. B. J. 500 (1973).
JUDICIAL DECISIONSANALYSIS
Alibi is physical circumstance, and derives its entire potency as a defense from fact that it involves physical impossibility of guilt of accused. An alibi which still leaves it possible for accused to be guilty is not an alibi at all. Harris v. State, 120 Ga. 167, 47 S.E. 520 (1904).
Alibi is simply evidence in support of defendant's plea of not guilty, and should be treated merely as evidence tending to disprove one of the essential factors in prosecution's case, that is, presence of defendant at time and place of alleged crime. Parham v. State, 120 Ga. App. 723, 171 S.E.2d 911 (1969), for comment, see 21 Mercer L. Rev. 511 (1970).
Alibi is simply evidence rebutting case for prosecution by denying charge against defendant. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), for comment, see 23 Mercer L. Rev. 977 (1972).
Defense of alibi is statutory in criminal cases, but not in civil cases. Roberts v. McClellan, 80 Ga. App. 199, 55 S.E.2d 736 (1949).
Alibi consists of proof that defendant was elsewhere when crime was committed.
- Alibi as a defense consists of proof that at time when crime was committed, accused was at place different from that where it was committed, so as to preclude idea that accused was perpetrator. Staton v. State, 174 Ga. 719, 163 S.E. 901 (1932).
Alibi is not a true affirmative defense. Parham v. State, 120 Ga. App. 723, 171 S.E.2d 911 (1969), for comment, see 21 Mercer L. Rev. 511 (1970); Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), for comment, see 23 Mercer L. Rev. 977 (1972).
Failure to inform state of defendant's alibi defense.
- Defendant's assigned attorney did not render ineffective assistance for failing to inform the state of the defendant's alibi defense and witness, which resulted in the exclusion of the defendant's alibi defense at the defendant's criminal trial, as counsel indicated that counsel spoke with the alibi witness, the defendant's sibling, and counsel had concluded that the defendant could not provide testimony establishing an alibi defense because the defendant had no memory of the defendant's whereabouts on specific dates and times. Rogers v. State, 271 Ga. App. 698, 610 S.E.2d 679 (2005).
Construction with O.C.G.A.
§ 17-16-5(a). - Defendant, whose evidence was the sole evidence in support of an alibi defense, was required to file an intention to offer an alibi defense under O.C.G.A. § 17-16-5(a), even when the state was aware that the defendant claimed to be elsewhere on the day of the crime, and such did not affect the defendant's right to testify under the Sixth Amendment; moreover, any prejudice to the state was irrelevant, because the statute provided no exception for such prior knowledge, and because common sense dictated that the mere claim to be elsewhere when confronted by authorities was a far cry from intending to present the legal defense of alibi. State v. Charbonneau, 281 Ga. 46, 635 S.E.2d 759 (2006).
Use of words "set up," in charging that "the defendant has set up an alibi as a defense in this case," is not an expression by the trial court that the defendant's defense of alibi was a concocted matter. Strozier v. State, 165 Ga. App. 551, 301 S.E.2d 907 (1983).
Cited in Williams v. State, 123 Ga. 138, 51 S.E. 322 (1905); Collier v. State, 154 Ga. 68, 113 S.E. 213 (1922); Jones v. State, 68 Ga. App. 210, 22 S.E.2d 671 (1942); Weaver v. State, 199 Ga. 267, 34 S.E.2d 163 (1945); Porter v. State, 200 Ga. 246, 36 S.E.2d 794 (1946); King v. State, 77 Ga. App. 539, 49 S.E.2d 196 (1948); Roberts v. McClellan, 80 Ga. App. 199, 55 S.E.2d 736 (1949); Perry v. State, 105 Ga. App. 776, 125 S.E.2d 666 (1962); Pryor v. State, 113 Ga. App. 660, 149 S.E.2d 401 (1966); Pippins v. State, 224 Ga. 462, 162 S.E.2d 338 (1968); Boyles v. State, 120 Ga. App. 852, 172 S.E.2d 637 (1969); Bridges v. State, 123 Ga. App. 157, 179 S.E.2d 685 (1970); Evans v. State, 124 Ga. App. 723, 185 S.E.2d 805 (1971); Johnson v. State, 228 Ga. 860, 188 S.E.2d 859 (1972); Bryant v. State, 229 Ga. 60, 189 S.E.2d 435 (1972); Welch v. State, 130 Ga. App. 18, 202 S.E.2d 223 (1973); Poole v. State, 130 Ga. App. 603, 203 S.E.2d 886 (1974); Peters v. State, 131 Ga. App. 513, 206 S.E.2d 623 (1974); Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974); Bagby v. State, 134 Ga. App. 263, 214 S.E.2d 11 (1975); Billups v. State, 236 Ga. 922, 225 S.E.2d 887 (1976); Abner v. State, 139 Ga. App. 600, 229 S.E.2d 83 (1976); Howard v. State, 141 Ga. App. 238, 233 S.E.2d 58 (1977); Cooper v. State, 143 Ga. App. 246, 237 S.E.2d 715 (1977); Johnson v. State, 143 Ga. App. 516, 239 S.E.2d 201 (1977); Cain v. State, 144 Ga. App. 249, 240 S.E.2d 750 (1977); Calloway v. State, 144 Ga. App. 457, 241 S.E.2d 575 (1978); Rice v. State, 147 Ga. App. 643, 249 S.E.2d 694 (1978); Colbert v. State, 146 Ga. App. 266, 253 S.E.2d 882 (1979); Patrick v. State, 245 Ga. 417, 265 S.E.2d 553 (1980); Hudgins v. State, 153 Ga. App. 601, 266 S.E.2d 283 (1980); Adams v. State, 246 Ga. 119, 269 S.E.2d 11 (1980); Whitt v. State, 157 Ga. App. 10, 276 S.E.2d 64 (1981); James v. State, 162 Ga. App. 490, 292 S.E.2d 91 (1982); Pearson v. State, 164 Ga. App. 337, 297 S.E.2d 98 (1982); Jones v. State, 165 Ga. App. 498, 299 S.E.2d 576 (1983); Kennedy v. State, 172 Ga. App. 336, 323 S.E.2d 169 (1984); Melton v. State, 222 Ga. App. 555, 474 S.E.2d 640 (1996); McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
When Charge Required
When evidence reasonably excludes possibility of defendant's presence at time of commission of offense, charge on alibi is warranted. Simmons v. State, 149 Ga. App. 830, 256 S.E.2d 79 (1979).
Defendant's testimony as to whereabouts at time of crime warrants charge on alibi.
- It is not error for court to charge law of alibi where defendant, testifying as witness in own behalf, states that defendant was at some place distant from where crime was committed at time it occurred. Williams v. State, 223 Ga. 773, 158 S.E.2d 373 (1967).
When alibi is sole defense and is supported by evidence.
- It is error, even in absence of request, to fail to charge on law of alibi, if this is the defendant's sole defense and is supported not only by the defendant's statement but by the testimony of witnesses. Cutts v. State, 86 Ga. App. 760, 72 S.E.2d 565 (1952); Jenkins v. State, 96 Ga. App. 86, 99 S.E.2d 474 (1957); Coppage v. State, 113 Ga. App. 482, 148 S.E.2d 484 (1966); Brown v. State, 122 Ga. App. 470, 177 S.E.2d 509 (1970); Silvey v. State, 142 Ga. App. 699, 236 S.E.2d 869 (1977).
When alibi is sole defense of the accused, the failure of the trial court to charge on defense of alibi, even in absence of request, is reversible error when there is some evidence to support the defense. Dixon v. State, 157 Ga. App. 550, 278 S.E.2d 130 (1981).
In prosecution for burglary and rape, evidence was sufficient to support charge on alibi where, although the defendant testified to not remembering where defendant was on the day the crimes occurred, defendant also testified that on that day defendant did not see the victim, defendant did not break into the victim's home, and defendant did not see the codefendant. Boyd v. State, 167 Ga. App. 799, 307 S.E.2d 725 (1983).
When Charge Not Required
Lack of supporting evidence.
- Although alibi constitutes the sole defense, the court need not charge thereon when not authorized by the evidence. Sapp v. State, 155 Ga. App. 485, 271 S.E.2d 19 (1980).
In prosecution for attempting to elude police officer, when defendant admitted to being present in the vicinity of the chase, defendant's explanation that defendant was at school moments before being stopped did not constitute an alibi so as to require an alibi charge. Storey v. State, 205 Ga. App. 610, 422 S.E.2d 879, cert. denied, 205 Ga. App. 901, 422 S.E.2d 879 (1992).
Charge on alibi not authorized by evidence.
- Alibi was not an issue and the trial court was not required to give a charge on alibi since the charge was not authorized by the evidence when the evidence was uncontradicted that the defendant was not at the motel at the time of the drug transaction or when the contraband was discovered and seized, and the state never contended that defendant was present. The "alibi" witnesses for the defense testified only that they had seen defendant at another motel on some unspecified dates in March. Mathis v. State, 204 Ga. App. 896, 420 S.E.2d 788, cert. denied, 204 Ga. App. 922, 420 S.E.2d 788 (1992).
Charge not requested.
- Absent request, court need not charge on alibi where evidence supporting it is manifestly insufficient. Hornbuckle v. State, 76 Ga. App. 111, 45 S.E.2d 98 (1947).
It is ordinarily not error to fail to charge specifically on alibi absent a request for such a charge. Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982); Ashley v. State, 240 Ga. App. 502, 523 S.E.2d 901 (1999).
Trial court did not err in failing to charge on alibi absent a request. Johnson v. State, 174 Ga. App. 751, 330 S.E.2d 925 (1985).
Even if the defense of alibi had been raised by the evidence, a specific charge on alibi was not required, absent a written request, if the court's charge as a whole covered such defense. Hightower v. State, 224 Ga. App. 703, 481 S.E.2d 867 (1997), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
It was not error to fail to give a charge on alibi when a burglary defendant had not requested such a charge; the jury had been fully charged on the presumption of innocence and proof beyond a reasonable doubt, and moreover the defendant's alibi testimony did not establish the impossibility of the defendant's presence at the scene of the burglary at the time the burglary was committed. Matthews v. State, 285 Ga. App. 859, 648 S.E.2d 160 (2007).
Trial court's refusal to give defendant's written request to charge the jury on the law of alibi was not reversible error where the testimony of the witness for the defendant would have provided an alibi for the night before the actual commission of the crime. Brewton v. State, 174 Ga. App. 109, 329 S.E.2d 270 (1985).
When defendant charged with setting up robbery.
- When the state never contended the defendant was actually present at the time of the robbery but that defendant had set up the robbery and left the scene shortly before the robbery took place, alibi was not in issue and therefore it was not error for the court to refuse an instruction on alibi. Martin v. State, 170 Ga. App. 854, 318 S.E.2d 724 (1984).
When evidence of alibi is not of strong probative value, charge thereon is unnecessary.
- Failure to charge on alibi is not error, especially in absence of written request, where evidence in support of alibi is not of clear and strong probative value. Cole v. State, 63 Ga. App. 418, 11 S.E.2d 239 (1940).
When evidence relating to alibi is not clear and of strong probative value, failure to charge thereon, in absence of proper request, will not be cause for reversal. Dixon v. State, 157 Ga. App. 550, 278 S.E.2d 130 (1981).
Trial court did not err in not charging the jury on the law on alibi notwithstanding the defendant's failure either to request such a charge or to object to the jury charge given when, because of the vagueness of the exact times of defendant's alibi and the wide span of time during which the crime occurred, the defendant's testimony, even if believed, did not necessarily or reasonably exclude the possibility of defendant's presence. Morris v. State, 166 Ga. App. 137, 303 S.E.2d 492 (1983).
Failure to show impossibility of defendant's presence.
- When evidence in support of defense of alibi does not show impossibility of defendant's presence at scene of crime at time of the crime's commission, failure of the court to charge law of alibi, especially in absence of request for such charge, is not error. Plemons v. State, 155 Ga. App. 447, 270 S.E.2d 836 (1980).
When only evidence of alibi is defendant's unsupported statement.
- In rape prosecution, when there was no evidence of alibi except a statement of defendant, even conceding that statement of defendant was sufficient to raise the defense, if evidence of sheriff, who arrested defendant, in no way supported defense of alibi, and no other evidence tending to do so was offered, the trial court did not err in failing to charge law of alibi, in the absence of a timely written request. Williams v. State, 207 Ga. 620, 63 S.E.2d 358 (1951).
It is not error to fail to charge on alibi when there is no request therefor and only basis for alibi consists of defendant's unsworn statement. Smith v. State, 155 Ga. App. 506, 271 S.E.2d 654 (1980), cert. denied, 450 U.S. 922, 101 S. Ct. 1372, 67 L. Ed. 2d 351 (1981).
Unsworn statement of defendant, by itself, is insufficient to establish alibi.
- With issue of alibi raised only by defendant's unsworn statement, it cannot be said there is strong and probative evidence which reasonably excludes possibility of defendant's presence at scene. Baker v. State, 127 Ga. App. 403, 194 S.E.2d 122 (1972).
Defendant's prior statements repeated in court by state's witnesses are insufficient to raise defense of alibi. Smith v. State, 155 Ga. App. 506, 271 S.E.2d 654 (1980), cert. denied, 450 U.S. 922, 101 S. Ct. 1372, 67 L. Ed. 2d 351 (1981).
Defendant's unsworn statement that defendant was asleep in car used in robbery.
- When defendant in unsworn statement admitted being in an automobile allegedly used in a robbery but contended defendant was asleep from before until after the robbery took place, the statement was not sufficient to raise the issue of alibi so as to require that the trial court give the requested instruction on alibi. Hunsinger v. State, 225 Ga. 426, 169 S.E.2d 286 (1969).
Testimony contradicting rape victim's evidence regarding time spent with defendant.
- Testimony which merely contradicted evidence of girl allegedly raped as to length of time she and defendant were together was insufficient to show impossibility of defendant's presence at scene of alleged offense at time of its commission; accordingly, court did not err in not charging on subject of alibi. Latimer v. State, 188 Ga. 775, 4 S.E.2d 631 (1939).
When question of identity and fact of alibi are essentially the same.
- When the trial court charges the jury on the subject of identification of the defendant as the perpetrator of the charged offenses and when the question of identity of the perpetrator and the fact of alibi are essentially the same defense, the court's failure to charge on alibi is not error. Morris v. State, 166 Ga. App. 137, 303 S.E.2d 492 (1983).
When personal identity and alibi are virtually the same defense, the court need not instruct separately on alibi. Staton v. State, 174 Ga. 719, 163 S.E. 901 (1932).
Counsel was not ineffective in failing to request an alibi charge since the defense witnesses' testimony did not reasonably exclude the possibility of the defendant's presence at the crime scene. Moore v. State, 268 Ga. App. 398, 601 S.E.2d 854 (2004).
Burden of Proof
State must prove defendant's presence at commission of offense, beyond reasonable doubt when it is an essential element of the crime. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Since the true effect of an alibi defense is to traverse the state's proof that the defendant committed the crime, the charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt. Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982).
Burden of proving defendant's presence is on state throughout trial, and evidence of defendant's absence tends merely to weaken or disprove testimony of state's witnesses on this point. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Defendant need not establish alibi by any particular quantum of proof.
- When state presents evidence of defendant's presence, the burden of going forward with evidence to contradict the state's evidence may shift to defendant but it must not carry with it the requirement that defendant establish own evidence by any quantum of proof. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Placing burden of proof or persuasion of alibi on defendant.
- Regardless of what quantum of proof is required, practice of placing burden of proof or persuasion on defendant is unconstitutionally impermissible in cases involving alibi defense. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Requiring proof of alibi by preponderance of evidence is erroneous.
- To charge that defendant in criminal case must establish defense of alibi by preponderance of evidence would be erroneous as placing upon defendant a greater burden than is required by law. Moultrie v. State, 93 Ga. App. 396, 92 S.E.2d 33 (1956).
Due process is violated by charge that burden is upon criminal defendant to prove defense of alibi by preponderance of evidence. Parham v. State, 120 Ga. App. 723, 171 S.E.2d 911 (1969), commented on in 21 Mercer L. Rev. 511 (1970).
Charge that alibi must be established to reasonable satisfaction of jury is error for reason that it shatters presumption of innocence, creates confusion in minds of jury, shifts burden of persuasion to defendant on issue of defendant's presence at crime and requires defendant to establish innocence, is inconsistent with principle that state must prove defendant's guilt beyond reasonable doubt, and thereby violates fundamental rights incorporated in due process clause of U.S. Const., amend. 14. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Charge to jury requiring that the defendant presenting alibi evidence must establish the defendant's alibi to a reasonable satisfaction of the jury violates due process because such highly ambiguous and contradictory charge might lead the jury to the erroneous belief that the jury was free to apply the lesser standard of proof to an essential element of the crime, i.e., defendant's presence. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S. Ct. 1509, 36 L. Ed. 2d 190 (1973), commented on in 9 Ga. St. B.J. 500 (1973).
Accused is only required to establish alibi to reasonable satisfaction of jury, not beyond a reasonable doubt. Nevertheless, any evidence of alibi whatsoever is to be considered on the general case, with the rest of the testimony, and, if a reasonable doubt of guilt is raised by evidence as a whole, defendant should be acquitted. Ranson v. State, 2 Ga. App. 826, 59 S.E. 101 (1907). But see Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Burden is upon defendant to establish defense of alibi to reasonable satisfaction of jury. However, if all evidence, including evidence introduced on question of alibi, creates in their minds a reasonable doubt as to guilt of defendant, it is their duty to give defendant benefit of doubt and acquit the defendant. Stanford v. State, 153 Ga. 219, 112 S.E. 130 (1922); Eugee v. State, 159 Ga. 604, 126 S.E. 471 (1925). But see Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Burden is on accused to sustain defense of alibi to reasonable satisfaction of jury in order to overcome proof of guilt of crime with which defendant is charged. Mills v. State, 199 Ga. 211, 33 S.E.2d 702 (1945). But see Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
When issue of alibi is present, it is not error to instruct jury that alibi as a defense should be established to reasonable satisfaction of jury, but not necessarily beyond a reasonable doubt. Merneigh v. State, 123 Ga. App. 485, 181 S.E.2d 498 (1971). But see Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Application
Defense of alibi is covered by general issue of not guilty as a matter of pleading. Kitchens v. State, 209 Ga. 913, 76 S.E.2d 618 (1953).
Evidence of alibi should come into case like any other evidence, and should be submitted to jury for consideration of whether evidence as a whole proves defendant's guilt beyond a reasonable doubt. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972).
Evidence most favorable to defendant must be considered in determining whether charge on alibi required. Cutts v. State, 86 Ga. App. 760, 72 S.E.2d 565 (1952).
Distance from victim is of slight, if any, importance. Harris v. State, 120 Ga. 167, 47 S.E. 520 (1904).
Defendant claiming alibi defense entitled to continuance.
- Approximately one week before trial, the defendant filed a notice of alibi with the state; at the beginning of the trial, the state announced that the state intended to prove that the alleged drug trafficking occurred within two weeks of the date alleged in the indictment, not on that date exactly. It was reversible error to deny the defendant's subsequent motion for continuance as the defendant had relied on the date in the indictment for the defendant's trial preparation. Bradford v. State, 285 Ga. 1, 673 S.E.2d 201 (2009).
Inadvertent use of "possibility" rather than "impossibility."
- When court charged that alibi as a defense involves "possibility" of presence of accused at scene of crime, and subsequently stated that jury should acquit defendant if the jury does not believe that defendant was present at the time and place of jury offense, the word "possibility" could not have misled the jury and is not ground for a new trial. Evans v. State, 222 Ga. 392, 150 S.E.2d 240, cert. denied, 385 U.S. 953, 87 S. Ct. 336, 17 L. Ed. 2d 231 (1966).
Use of "defendant" for "accused" in jury charge not error.
- Substitution of the word "defendant" for the word "accused" in instruction on the affirmative defense of alibi did not constitute a "toxic" shift of the burden of proof from the state to the defendant, as the charge stated the law accurately; thus, the trial court did not err in giving this version of the charge. Garrison v. State, 276 Ga. App. 243, 622 S.E.2d 910 (2005).
Charge that evidence of alibi need only create reasonable doubt of guilt suffices.
- Duty to instruct on alibi could be fulfilled by instructing that evidence presented to prove alibi, considered alone or with all other evidence, need only be sufficient to create reasonable doubt of defendant's guilt. Parham v. State, 120 Ga. App. 723, 171 S.E.2d 911 (1969); Hunter v. State, 135 Ga. App. 172, 217 S.E.2d 172 (1975)commented on in 21 Mercer L. Rev. 511 (1970).
Failure to charge on alibi as reversible error.
- In very close case where there is evidence tending to show alibi, it is reversible error for judge to fail to charge upon that subject. Staton v. State, 174 Ga. 719, 163 S.E. 901 (1932).
Failure to give charge on alibi is ground for new trial, when in close case it is set up and sustained by evidence. Hornbuckle v. State, 76 Ga. App. 111, 45 S.E.2d 98 (1947).
Alibi, if proved, results in acquittal in and of itself. Hale v. State, 110 Ga. App. 236, 138 S.E.2d 113 (1964).
Failure to call alibi witness.
- Defendant failed to show that trial counsel was ineffective for failing to call the defendant's mother as an alibi witness because the prosecutor suggested there was a possibility that the state would call the mother as a part of the state's case in chief, suggesting that the mother's testimony was favorable to the state and trial counsel's testimony that there was a reason for not calling the mother but that counsel could not remember was supported by the state's plan to call the witness. Benjamin v. State, 322 Ga. App. 8, 743 S.E.2d 566 (2013).
RESEARCH REFERENCES
Am. Jur. 2d.
- 29A Am. Jur. 2d, Evidence, § 1417.
Alibi Defense, 27 POF2d 431.
ALR.
- Instructions disparaging defense of alibi, 14 A.L.R. 1426; 67 A.L.R. 122; 146 A.L.R. 1377.
Burden and degree of proof as to alibi, 29 A.L.R. 1127; 67 A.L.R. 138; 124 A.L.R. 471.
Duty of court to instruct on the subject of alibi, 118 A.L.R. 1303.
Validity and construction of statute requiring defendant in criminal case to disclose matter as to alibi defense, 45 A.L.R.3d 958.
Duty of court, in absence of specific request, to instruct on subject of alibi, 72 A.L.R.3d 547.
Propriety and prejudicial effect of "on or about" instruction where alibi evidence in federal criminal case purports to cover specific date shown by prosecution evidence, 92 A.L.R. Fed. 313.
CHAPTER 4 CRIMINAL ATTEMPT, CONSPIRACY, AND SOLICITATIONSec.
- For annual survey article discussing trial practice and procedure, see 52 Mercer L. Rev. 447 (2000).
JUDICIAL DECISIONS
Cited in Smith v. State, 228 Ga. 293, 185 S.E.2d 381 (1971).
RESEARCH REFERENCESAbandonment of Crime, Proof of Withdrawal from Conspiracy, 8 POF2d 831.
Conspiracy, Generally, 20 Am. Jur. Trials 351 et seq.