(Ga. L. 1853-54, p. 46, § 1; Code 1863, § 3639; Code 1868, § 3664; Code 1873, § 3715; Ga. L. 1878-79, p. 150, § 1; Code 1882, § 3715; Civil Code 1895, § 5479; Penal Code 1895, § 1060; Civil Code 1910, § 6084; Penal Code 1910, § 1087; Code 1933, § 70-207; Ga. L. 1965, p. 18, § 17; Ga. L. 1966, p. 493, § 6; Ga. L. 1968, p. 1072, § 9.)
Cross references.- Granting of new trials in instances where judge expresses opinion as to what has or has not been proved or, in criminal actions, expresses the judge's opinion as to guilt of accused, §§ 9-10-7 and17-8-55.
Law reviews.- For article arguing for and against adoption of Rule 51 of the Federal Rules of Civil Procedure, so as to require objections to charges before verdict, see 1 Ga. St. B.J. 177 (1964). For article, "The Appellate Procedure Act of 1965," see 1 Ga. St. B.J. 451 (1965). For article, "1966 Amendments to the Appellate Procedure Act of 1965," see 2 Ga. St. B.J. 433 (1966). For article comparing sections of Ch. 11, T. 5 with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article, "Synopses of 1968 Amendments Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article, "Trial Practice and Procedure," see 53 Mercer L. Rev. 475 (2001). For annual survey of trial practice and procedure, see 58 Mercer L. Rev. 405 (2006). For survey article on appellate practice and procedure, see 59 Mercer L. Rev. 21 (2007). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For comment on Bibb Transit Co. v. Johnson, 107 Ga. App. 804, 131 S.E.2d 631 (1963), see 16 Mercer L. Rev. 347 (1964).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the issues dealt with in the provisions, decisions under former Civil Code 1910, § 6084, former Penal Code 1910, § 1087, and former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17, are included in the annotations for this Code section.
Use of federal cases for interpretation.
- Subsection (b) is an adoption of Fed. R. Civ. P. 51, and thus federal cases provide guidance for resolving issues presented in the statute's interpretation. Daniels v. State, 137 Ga. App. 371, 224 S.E.2d 60 (1976). But see Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).
Subsection (b) of this section is an adoption of Fed. R. Civ. P. 51 and decisions of federal courts are authoritative though not binding on the question of the statute's construction. Seaney & Co. v. Katz, 132 Ga. App. 456, 208 S.E.2d 333 (1974). But see Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).
As subsection (b) is similar to Fed. R. Civ. P. 51, federal courts' application has persuasive influence. Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972). But see Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).
Interpretations of Fed. R. Civ. P. 51 are not authority for construction of section.
- Federal cases interpreting Fed. R. Civ. P. 51 are based upon substantially different law than this section and are not authority for construction of this section. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).
Intended departure of section from Fed. R. Civ. P. 51 as to requests to charge.
- Substance of paragraphs (a) and (b) of § 17 of Appellate Practice Act (Ga. L. 1965, p. 18) is embodied in a single paragraph in Fed. R. Civ. P. 51. It is thus manifest that the legislature in enacting § 17 of the Appellate Practice Act intended to depart from the federal rule in the matter of requests to charge. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).
Distinction between failure to request charge and object to its omission, and failure to object to charge.
- Thomas v. State, 234 Ga. 615, 216 S.E.2d 859, answer conformed to, 136 Ga. App. 165, 220 S.E.2d 736 (1975).
Last clause of subsection (a) applies to charge, not to statements to accused in jury's presence.
- Negative command of subsection (a) that the statute's provisions shall not apply in criminal cases, is applicable to charge of court but is not applicable to statements made by court to accused in jury's presence but not a part of the charge to the jury. Thomas v. State, 234 Ga. 615, 216 S.E.2d 859, answer conformed to, 136 Ga. App. 165, 220 S.E.2d 736 (1975).
Objection or request to charge to restrict admission of evidence to special purpose.
- Effect of admission of evidence should usually be made the subject of objection or of a request to charge when it is desired that it be restricted to a special purpose. Deshazier v. State, 155 Ga. App. 526, 271 S.E.2d 664 (1980).
Discretion of trial judge in declaring mistrial.
- Trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. Furthermore, unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with. Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981).
Citing law in closing argument.
- Enactment of O.C.G.A. § 5-5-24 renders "reading the law" both unnecessary and incorrect, though it is counsel's right to state counsel's legal position to the jury. Freels v. State, 195 Ga. App. 609, 394 S.E.2d 405 (1990).
Explanatory comments.
- Explanatory comments to juror question are not the same as a recharge and subsection (c) of O.C.G.A. § 5-5-24 does not create an exception to a failure to object to such judicial comments. Brown v. State, 221 Ga. App. 454, 471 S.E.2d 527 (1996).
Statute is mandatory.
- Provision in O.C.G.A. § 5-5-24(b) that the court shall instruct the jury after the arguments are completed is mandatory and requires a complete charge be given after closing arguments are completed. Williams v. State, 277 Ga. 853, 596 S.E.2d 597 (2004).
Cited in Cain v. State, 113 Ga. App. 477, 148 S.E.2d 508 (1966); Georgia Power Co. v. Maddox, 113 Ga. App. 642, 149 S.E.2d 393 (1966); King v. Adams, 113 Ga. App. 708, 149 S.E.2d 548 (1966); Strong v. Palmour, 113 Ga. App. 750, 149 S.E.2d 745 (1966); Israel v. Wilson, 113 Ga. App. 846, 149 S.E.2d 839 (1966); Howington v. State, 114 Ga. App. 93, 150 S.E.2d 252 (1966); Matthews v. State Hwy. Dep't, 114 Ga. App. 163, 150 S.E.2d 464 (1966); Atkins v. Britt, 114 Ga. App. 258, 150 S.E.2d 841 (1966); Phillips v. State, 114 Ga. App. 417, 151 S.E.2d 474 (1966); Southwire Co. v. Franklin Aluminum Co., 114 Ga. App. 337, 151 S.E.2d 493 (1966); Westmoreland v. State, 114 Ga. App. 389, 151 S.E.2d 548 (1966); State Hwy. Dep't v. Calhoun, 114 Ga. App. 501, 151 S.E.2d 806 (1966); Saint v. Ryan, 114 Ga. App. 489, 151 S.E.2d 826 (1966); Clark v. Belleau, Inc., 114 Ga. App. 587, 151 S.E.2d 894 (1966); State Hwy. Dep't v. Edmunds, 115 Ga. App. 154, 154 S.E.2d 35 (1967); DeFee v. I.S. Berlin Press, Inc., 115 Ga. App. 206, 154 S.E.2d 452 (1967); Gunter v. State, 223 Ga. 290, 154 S.E.2d 608 (1967); Haskins v. Carson, 115 Ga. App. 336, 154 S.E.2d 626 (1967); Crider v. State, 115 Ga. App. 347, 154 S.E.2d 743 (1967); Sakobie v. State, 115 Ga. App. 460, 154 S.E.2d 830 (1967); Barnes v. State, 115 Ga. App. 431, 154 S.E.2d 878 (1967); McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967); Millholland v. Oglesby, 115 Ga. App. 715, 155 S.E.2d 672 (1967); Childs v. Childs, 223 Ga. 435, 156 S.E.2d 21 (1967); Smith v. State, 116 Ga. App. 45, 156 S.E.2d 380 (1967); Crouch v. Nicholson, 116 Ga. App. 12, 156 S.E.2d 384 (1967); Gabriel v. Clary, 116 Ga. App. 151, 156 S.E.2d 465 (1967); City of Douglas v. Rigdon, 116 Ga. App. 306, 157 S.E.2d 66 (1967); Hawkins v. State, 116 Ga. App. 448, 157 S.E.2d 800 (1967); Colter v. Consolidated Credit Corp., 116 Ga. App. 520, 157 S.E.2d 812 (1967); Williams v. State, 223 Ga. 773, 158 S.E.2d 373 (1967); Bowens v. State, 116 Ga. App. 577, 158 S.E.2d 420 (1967); Smith v. Burtts, 116 Ga. App. 649, 158 S.E.2d 702 (1967); Partridge v. Lee, 116 Ga. App. 800, 159 S.E.2d 113 (1967); Stevens v. State, 117 Ga. App. 41, 159 S.E.2d 456 (1967); Douglas v. Herringdine, 117 Ga. App. 72, 159 S.E.2d 711 (1967); DuFour v. Martin, 117 Ga. App. 160, 159 S.E.2d 450 (1968); Coley v. State, 117 Ga. App. 149, 159 S.E.2d 452 (1968); Gunnells v. Cotton States Mut. Ins. Co., 117 Ga. App. 123, 159 S.E.2d 730 (1968); Barnes v. Barnes, 224 Ga. 92, 160 S.E.2d 391 (1968); Burgess v. State, 117 Ga. App. 284, 160 S.E.2d 411 (1968); Atlanta Americana Motor Hotel Corp. v. Sika Chem. Corp., 117 Ga. App. 707, 161 S.E.2d 342 (1968); Fett v. Alderman, 117 Ga. App. 677, 161 S.E.2d 350 (1968); Askew v. State, 117 Ga. App. 647, 161 S.E.2d 445 (1968); Buntin v. State, 117 Ga. App. 813, 162 S.E.2d 234 (1968); Callaway v. Miller, 118 Ga. App. 309, 163 S.E.2d 336 (1968); Caudell v. Sargent, 118 Ga. App. 405, 164 S.E.2d 148 (1968); O'Neil v. Moore, 118 Ga. App. 424, 164 S.E.2d 328 (1968); Turner v. State, 118 Ga. App. 650, 164 S.E.2d 924 (1968); Still v. Metropolitan Life Ins. Co., 118 Ga. App. 832, 165 S.E.2d 896 (1968); McGregor v. State, 119 Ga. App. 40, 165 S.E.2d 915 (1969); Harris v. State, 118 Ga. App. 848, 166 S.E.2d 94 (1969); Peek v. Miller, 119 Ga. App. 138, 166 S.E.2d 377 (1969); Colley v. Stump, 119 Ga. App. 220, 166 S.E.2d 616 (1969); Chalkley v. Ward, 119 Ga. App. 227, 166 S.E.2d 748 (1969); Ewing v. Whitehead, 119 Ga. App. 72, 166 S.E.2d 769 (1969); Griffin v. State, 225 Ga. 209, 166 S.E.2d 885 (1969); City of Atlanta v. Williams, 119 Ga. App. 353, 166 S.E.2d 896 (1969); Sancken Assoc. v. Stokes, 119 Ga. App. 282, 166 S.E.2d 924 (1969); Hatley v. State, 119 Ga. App. 371, 167 S.E.2d 217 (1969); Tabor v. Fowler, 119 Ga. App. 259, 167 S.E.2d 220 (1969); Jones v. State, 119 Ga. App. 322, 167 S.E.2d 237 (1969); Pirkle v. Widener, 119 Ga. App. 401, 167 S.E.2d 407 (1969); Newcomb v. Pattillo, 119 Ga. App. 495, 167 S.E.2d 665 (1969); Jones v. Cloud, 119 Ga. App. 697, 168 S.E.2d 598 (1969); Roberts v. Halpern's Home Stores of Ga., Inc., 119 Ga. App. 826, 169 S.E.2d 177 (1969); Harnage v. Hall, 120 Ga. App. 12, 169 S.E.2d 345 (1969); Worsham v. Trimble, 120 Ga. App. 180, 169 S.E.2d 689 (1969); Knox v. Knox, 225 Ga. 481, 169 S.E.2d 805 (1969); Boone v. Boone, 225 Ga. 610, 170 S.E.2d 414 (1969); Jones v. Atkins, 120 Ga. App. 487, 171 S.E.2d 367 (1969); Brown v. Kelley, 120 Ga. App. 788, 172 S.E.2d 181 (1969); Berger v. Plantation Pipeline Co., 121 Ga. App. 362, 173 S.E.2d 741 (1970); Seagraves v. Kelley, 121 Ga. App. 412, 173 S.E.2d 885 (1970); Richmond County Hosp. Auth. v. Haynes, 121 Ga. App. 537, 174 S.E.2d 364 (1970); Shepard v. Morrison, 121 Ga. App. 762, 175 S.E.2d 407 (1970); Gaither v. Green, 122 Ga. App. 25, 176 S.E.2d 204 (1970); McChargue v. Black Grading Contractors, 122 Ga. App. 1, 176 S.E.2d 212 (1970); Colvin v. Truitt, 122 Ga. App. 233, 176 S.E.2d 502 (1970); Garmany v. Peavy, 122 Ga. App. 466, 177 S.E.2d 502 (1970); Seibers v. Morris, 226 Ga. 813, 177 S.E.2d 705 (1970); Shelton v. Housing Auth., 122 Ga. App. 535, 177 S.E.2d 832 (1970); Baxter v. Bryan, 122 Ga. App. 817, 178 S.E.2d 724 (1970); Reeves v. Morgan, 123 Ga. App. 64, 179 S.E.2d 648 (1970); Morehead v. Morehead, 227 Ga. 428, 181 S.E.2d 59 (1971); Denham v. Shellman Grain Elevator, Inc., 123 Ga. App. 569, 181 S.E.2d 894 (1971); Austin Lee Corp. v. Cascades Motel, Inc., 123 Ga. App. 642, 182 S.E.2d 173 (1971); Southern Home Ins. Co. v. Willoughby, 124 Ga. App. 162, 182 S.E.2d 910 (1971); Craft v. State, 124 Ga. App. 57, 183 S.E.2d 37 (1971); Lane v. Morrison, 124 Ga. App. 316, 183 S.E.2d 533 (1971); Harris v. Hub Motor Co., 124 Ga. App. 490, 184 S.E.2d 199 (1971); Brown v. Nutter, 125 Ga. App. 449, 188 S.E.2d 133 (1972); Security Dev. & Inv. Co. v. Ben O'Callaghan Co., 125 Ga. App. 526, 188 S.E.2d 238 (1972); Tanner v. State, 228 Ga. 829, 188 S.E.2d 512 (1972); Wells v. State, 126 Ga. App. 130, 190 S.E.2d 106 (1972); Whiteway Laundry & Dry Cleaners, Inc. v. Childs, 126 Ga. App. 617, 191 S.E.2d 454 (1972); G.E.C. Corp. v. Levy, 126 Ga. App. 604, 191 S.E.2d 461 (1972); Anchor Sign Co. v. LaBarge Pipe & Steel Co., 127 Ga. App. 86, 192 S.E.2d 714 (1972); Utzman v. Srochi, 127 Ga. App. 294, 193 S.E.2d 195 (1972); Hodges v. Carpenter, 127 Ga. App. 358, 193 S.E.2d 199 (1972); Hornbuckle v. Escambia Chem. Corp., 127 Ga. App. 522, 194 S.E.2d 344 (1972); Daugherty v. Vick, 127 Ga. App. 767, 195 S.E.2d 208 (1972); Newsrack Supply, Inc. v. Heinle, 127 Ga. App. 843, 195 S.E.2d 193 (1973); Daniels v. State, 230 Ga. 126, 195 S.E.2d 900 (1973); Averette v. Oliver, 128 Ga. App. 54, 195 S.E.2d 925 (1973); Gibson's Prods. Co. v. Mansfield, 128 Ga. App. 186, 196 S.E.2d 353 (1973); Johnson & Schultz Agents-Brokers, Inc. v. Overnite Transp. Co., 128 Ga. App. 392, 196 S.E.2d 681 (1973); Maynard v. Readdick, 128 Ga. App. 368, 196 S.E.2d 688 (1973); Bailey v. Perrin, 128 Ga. App. 476, 196 S.E.2d 899 (1973); Howard v. Gardner, 128 Ga. App. 545, 197 S.E.2d 386 (1973); Holzendorf v. Sheffield, 230 Ga. 497, 197 S.E.2d 701 (1973); Robertson v. Georgia Power Co., 128 Ga. App. 740, 197 S.E.2d 924 (1973); Locklear v. Morgan, 129 Ga. App. 763, 201 S.E.2d 163 (1973); Drake v. Shurbutt, 129 Ga. App. 754, 201 S.E.2d 184 (1973); Howington v. Puckett, 130 Ga. App. 584, 203 S.E.2d 916 (1974); Reynolds v. Huckeba, 231 Ga. 792, 204 S.E.2d 149 (1974); Jones v. Hutchins, 131 Ga. App. 808, 207 S.E.2d 224 (1974); Redman Dev. Corp. v. Pollard, 132 Ga. App. 98, 207 S.E.2d 588 (1974); Carter v. Harrell, 132 Ga. App. 148, 207 S.E.2d 648 (1974); Davenport v. Little, 132 Ga. App. 391, 208 S.E.2d 179 (1974); Davis v. Londeau, 132 Ga. App. 626, 208 S.E.2d 632 (1974); Thibadeau Co. v. McMillan, 132 Ga. App. 842, 209 S.E.2d 236 (1974); Harwell v. Harwell, 233 Ga. 89, 209 S.E.2d 625 (1974); Shepherd v. Shepherd, 233 Ga. 228, 210 S.E.2d 731 (1974); Haralson County Economic Dev. Corp. v. Hammock, 233 Ga. 381, 211 S.E.2d 278 (1974); DiMauro v. Barber, 133 Ga. App. 590, 211 S.E.2d 624 (1974)
Black v. Johnson, 233 Ga. 533, 212 S.E.2d 368 (1975); Luke v. McGuire Ins. Agency of Ga., Inc., 133 Ga. App. 948, 212 S.E.2d 889 (1975); Carpenter v. Cornwell, 133 Ga. App. 797, 213 S.E.2d 56 (1975); McNeill v. State, 134 Ga. App. 45, 213 S.E.2d 119 (1975); Patterson v. State, 233 Ga. 724, 213 S.E.2d 612 (1975); Maddox v. State, 233 Ga. 874, 213 S.E.2d 654 (1975); Scott v. State, 233 Ga. 815, 213 S.E.2d 676 (1975); Long v. State, 233 Ga. 926, 213 S.E.2d 853 (1975); Hand v. Williams, 234 Ga. 755, 218 S.E.2d 7 (1975); Gilbert v. Cherry, 136 Ga. App. 417, 221 S.E.2d 472 (1975); Ayers v. Nichols, 136 Ga. App. 532, 221 S.E.2d 835 (1975); National Trailer Convoy, Inc. v. Sutton, 136 Ga. App. 760, 222 S.E.2d 98 (1975); A.W. Easter Constr. Co. v. White, 137 Ga. App. 465, 224 S.E.2d 112 (1976); Walker v. Burton, 137 Ga. App. 783, 224 S.E.2d 786 (1976); Aldridge v. State, 236 Ga. 773, 225 S.E.2d 421 (1976); Raybon v. Reimers, 138 Ga. App. 511, 226 S.E.2d 620 (1976); Davis v. Southland Auto Salvage, Inc., 138 Ga. App. 571, 226 S.E.2d 749 (1976); Sentry Ins. v. Henderson, 138 Ga. App. 495, 226 S.E.2d 759 (1976); Dual S. Enters., Inc. v. Webb, 138 Ga. App. 810, 227 S.E.2d 418 (1976); Milton Inn, Inc. v. Spiva, 138 Ga. App. 843, 227 S.E.2d 525 (1976); Hogan v. City-County Hosp., 138 Ga. App. 906, 227 S.E.2d 796 (1976); Garmon v. Delta Air Lines, 139 Ga. App. 152, 227 S.E.2d 821 (1976); Seaboard Coast Line R.R. v. Davis, 139 Ga. App. 138, 227 S.E.2d 915 (1976); Pilkenton v. Eubanks, 139 Ga. App. 673, 229 S.E.2d 146 (1976); Piggly-Wiggly S., Inc. v. Tucker, 139 Ga. App. 873, 229 S.E.2d 804 (1976); Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976); Benn v. McBride, 140 Ga. App. 698, 231 S.E.2d 438 (1976); Harper v. Georgia S. & Fla. Ry., 140 Ga. App. 802, 232 S.E.2d 118 (1976); Fisher v. Fisher, 238 Ga. 253, 232 S.E.2d 532 (1977); Ealey v. State, 141 Ga. App. 94, 232 S.E.2d 620 (1977); Hardin v. State, 141 Ga. App. 115, 232 S.E.2d 631 (1977); Hogan v. Olivera, 141 Ga. App. 399, 233 S.E.2d 428 (1977); David Shapiro & Co. v. Timber Specialties, Inc., 141 Ga. App. 354, 233 S.E.2d 439 (1977); Pertilla v. Farley, 141 Ga. App. 620, 234 S.E.2d 125 (1977); Allen v. Jentzen, 141 Ga. App. 548, 234 S.E.2d 136 (1977); Young v. State, 239 Ga. 53, 236 S.E.2d 1 (1977); Crider v. Scoma, 142 Ga. App. 413, 236 S.E.2d 150 (1977); Rothstein v. First Nat'l Bank, 239 Ga. 216, 236 S.E.2d 350 (1977); Williams v. Central of Ga. Ry., 142 Ga. App. 523, 236 S.E.2d 498 (1977); Lewis v. Noonan, 142 Ga. App. 654, 236 S.E.2d 900 (1977); Lake v. Hamilton Bank, 143 Ga. App. 73, 237 S.E.2d 518 (1977); Minter v. Reid, 143 Ga. App. 92, 237 S.E.2d 632 (1977); Ameagle Contractors v. Couch Constr. Co., 143 Ga. App. 209, 237 S.E.2d 695 (1977); Williams v. Atlanta Gas Light Co., 143 Ga. App. 400, 238 S.E.2d 756 (1977); International Bhd. of Elec. Workers v. Briscoe, 143 Ga. App. 417, 239 S.E.2d 38 (1977); Nations v. State, 143 Ga. App. 559, 239 S.E.2d 216 (1977); Patterson v. Duron Paints of Ga., Inc., 144 Ga. App. 123, 240 S.E.2d 603 (1977); Genins v. Geiger, 144 Ga. App. 244, 240 S.E.2d 745 (1977); Gordon v. Gillespie, 144 Ga. App. 263, 241 S.E.2d 46 (1977); Burnett v. Doster, 144 Ga. App. 443, 241 S.E.2d 319 (1978); Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483 (1978); Fulton County v. Baranan, 240 Ga. 837, 242 S.E.2d 617 (1978); Mutual Benefit Health & Accident Ass'n v. Reed, 144 Ga. App. 853, 242 S.E.2d 731 (1978); DeBerry v. State, 241 Ga. 204, 243 S.E.2d 864 (1978); Hall v. State, 241 Ga. 252, 244 S.E.2d 833 (1978); Financial Bldg. Consultants, Inc. v. St. Charles Mfg. Co., 145 Ga. App. 768, 244 S.E.2d 877 (1978); Moody v. Moody, 241 Ga. 286, 244 S.E.2d 875 (1978); Holloway v. McElroy, 241 Ga. 400, 245 S.E.2d 658 (1978); Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978); Kennesaw Life & Accident Ins. Co. v. Hall, 147 Ga. App. 221, 248 S.E.2d 524 (1978); Floyd v. Thurman, 242 Ga. 428, 249 S.E.2d 230 (1978); Smith v. Nations, 147 Ga. App. 623, 249 S.E.2d 676 (1978); Atlanta Com. Bldrs., Inc. v. Polinsky, 148 Ga. App. 181, 250 S.E.2d 781 (1978); Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 250 S.E.2d 851 (1978); Stein Steel & Supply Co. v. Franco, 148 Ga. App. 186, 251 S.E.2d 74 (1978); Keenan v. Buchanan, 148 Ga. App. 279, 251 S.E.2d 120 (1978); Roberson v. Hart, 148 Ga. App. 343, 251 S.E.2d 173 (1978); Odom v. Odom, 148 Ga. App. 456, 251 S.E.2d 371 (1978); Moore v. State, 148 Ga. App. 469, 251 S.E.2d 376 (1978); Arnold v. DeKalb County Hosp. Auth., 148 Ga. App. 361, 251 S.E.2d 382 (1978); Freeman v. Saxton, 243 Ga. 571, 255 S.E.2d 28 (1979); Finley v. Griswold, 149 Ga. App. 612, 255 S.E.2d 87 (1979); Harris v. Collins, 149 Ga. App. 638, 255 S.E.2d 107 (1979); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Hines v. Tinnin, 150 Ga. App. 76, 256 S.E.2d 623 (1979); Snipes v. Leaseway of Ga., Inc., 150 Ga. App. 135, 257 S.E.2d 40 (1979); Ivie v. State, 151 Ga. App. 496, 260 S.E.2d 543 (1979); Cassier v. Golden, 151 Ga. App. 618, 260 S.E.2d 750 (1979); Rimes v. Weathers, 244 Ga. 875, 262 S.E.2d 145 (1979); Ramsey Brick Sales Co. v. Outlaw, 152 Ga. App. 37, 262 S.E.2d 227 (1979); Steed v. Steel Prod. Mfg. Co., 152 Ga. App. 350, 262 S.E.2d 616 (1979); Maddux v. R.O.E.M., Inc., 152 Ga. App. 732, 264 S.E.2d 31 (1979); Bissell v. State, 153 Ga. App. 564, 266 S.E.2d 238 (1980); Holder v. J.F. Kearley, Inc., 153 Ga. App. 843, 267 S.E.2d 266 (1980); Trade City G.M.C., Inc. v. May, 154 Ga. App. 371, 268 S.E.2d 421 (1980); McKeighan v. Long, 154 Ga. App. 171, 268 S.E.2d 674 (1980); DeVane v. Smith, 154 Ga. App. 442, 268 S.E.2d 711 (1980); Whitman v. Burden, 155 Ga. App. 67, 270 S.E.2d 235 (1980); Brooks v. Ralston Purina Co., 155 Ga. App. 164, 270 S.E.2d 347 (1980); Garner v. Driver, 155 Ga. App. 322, 270 S.E.2d 863 (1980); Newkirk v. State, 155 Ga. App. 470, 270 S.E.2d 917 (1980); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980); Midland Guardian Co. v. Rumsey, 155 Ga. App. 693, 272 S.E.2d 567 (1980); Irby v. Brooks, 246 Ga. 794, 273 S.E.2d 183 (1980); McDaniel v. Anderson, 155 Ga. App. 942, 274 S.E.2d 56 (1980); Landon v. Lavietes, 156 Ga. App. 123, 274 S.E.2d 120 (1980); McFarland v. Kim, 156 Ga. App. 781, 275 S.E.2d 364 (1980); Collins v. Martin, 157 Ga. App. 45, 276 S.E.2d 102 (1981); Sutphin v. McDaniel, 157 Ga. App. 732, 278 S.E.2d 490 (1981); Truitt v. State, 158 Ga. App. 337, 280 S.E.2d 384 (1981); Georgia Int'l Life Ins. Co. v. Harden, 158 Ga. App. 450, 280 S.E.2d 863 (1981); Blackmon v. State, 158 Ga. App. 665, 281 S.E.2d 634 (1981); Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981); McCoy v. Hankins, 159 Ga. App. 569, 284 S.E.2d 71 (1981); Graham Bros. Constr. Co. v. C.W. Matthews Contracting Co., 159 Ga. App. 546, 284 S.E.2d 282 (1981); Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981); Conner v. State, 160 Ga. App. 202, 286 S.E.2d 441 (1981); Harden v. State, 160 Ga. App. 514, 287 S.E.2d 329 (1981); Atlanta Limousine Airport Servs., Inc. v. Rinker, 160 Ga. App. 494, 287 S.E.2d 395 (1981); City of Atlanta v. West, 160 Ga. App. 609, 287 S.E.2d 558 (1981); Levine v. Wyatt, 160 Ga. App. 632, 287 S.E.2d 649 (1981); Hathcock v. Hathcock, 249 Ga. 74, 287 S.E.2d 19 (1982); City of Atlanta v. State Farm Fire & Cas. Co., 160 Ga. App. 822, 287 S.E.2d 665 (1982); Combined Contractors v. Welch, 160 Ga. App. 790, 288 S.E.2d 229 (1982); Davis v. State, 161 Ga. App. 358, 288 S.E.2d 631 (1982); Harris v. Miller Bros.' Farms, 161 Ga. App. 377, 288 S.E.2d 639 (1982); Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 291 S.E.2d 238 (1982); DOT v. Lowery, 163 Ga. App. 114, 291 S.E.2d 573 (1982); Glover v. Grogan, 162 Ga. App. 768, 292 S.E.2d 465 (1982); Brooks v. Douglas, 163 Ga. App. 224, 292 S.E.2d 911 (1982); Adams v. Wright, 162 Ga. App. 550, 293 S.E.2d 446 (1982); Newman v. James M. Vardaman & Co., 162 Ga. App. 878, 293 S.E.2d 462 (1982); Laughridge v. Moss, 163 Ga. App. 427, 294 S.E.2d 672 (1982); Lumpkin v. State, 249 Ga. 834, 295 S.E.2d 86 (1982)
Zant v. Akins, 250 Ga. 5, 295 S.E.2d 313 (1982); Green v. Weaver, 164 Ga. App. 286, 297 S.E.2d 57 (1982); Royal v. Davis Hauling Co., 164 Ga. App. 409, 297 S.E.2d 333 (1982); Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982); Harper v. Samples, 164 Ga. App. 511, 298 S.E.2d 29 (1982); Glennville Hatchery, Inc. v. Thompson, 164 Ga. App. 819, 298 S.E.2d 512 (1982); Hubacher v. Volkswagen Cent., Inc., 164 Ga. App. 791, 298 S.E.2d 533 (1982); Davis v. Williams, 165 Ga. App. 45, 299 S.E.2d 102 (1983); Gardner v. DOT, 165 Ga. App. 300, 299 S.E.2d 741 (1983); Morgan v. Citizens & S. Nat'l Bank, 165 Ga. App. 254, 299 S.E.2d 750 (1983); Teague v. State, 165 Ga. App. 470, 301 S.E.2d 667 (1983); Mansell v. Benson Chevrolet Co., 165 Ga. App. 568, 302 S.E.2d 114 (1983); Hester v. Associated Indem. Corp., 166 Ga. App. 63, 303 S.E.2d 321 (1983); Smith v. Hiawassee Hdwe. Co., 167 Ga. App. 70, 305 S.E.2d 805 (1983); Hurst v. J.P. Colley Contractors, 167 Ga. App. 56, 306 S.E.2d 54 (1983); Hyles v. Cockrill, 169 Ga. App. 132, 312 S.E.2d 124 (1983); DOT v. Whitehead, 169 Ga. App. 226, 312 S.E.2d 344 (1983); Henley v. State, 169 Ga. App. 682, 314 S.E.2d 697 (1984); Crawford v. State, 252 Ga. 552, 314 S.E.2d 880 (1984); Davis v. Stewart, 169 Ga. App. 733, 315 S.E.2d 6 (1984); Taylor v. State, 169 Ga. App. 842, 315 S.E.2d 661 (1984); Johnson v. State, 253 Ga. 37, 315 S.E.2d 871 (1984); DOT v. Clower, 170 Ga. App. 750, 318 S.E.2d 161 (1984); Fair v. State, 172 Ga. App. 49, 321 S.E.2d 790 (1984); Kirkland v. Williams, 172 Ga. App. 595, 323 S.E.2d 891 (1984); Allen v. Hiwassee Land Co., 172 Ga. App. 814, 324 S.E.2d 742 (1984); Jackson v. Rodriquez, 173 Ga. App. 211, 325 S.E.2d 857 (1984); Howard v. State, 173 Ga. App. 585, 327 S.E.2d 554 (1985); Mr. Transmission, Inc. v. Thompson, 173 Ga. App. 773, 328 S.E.2d 397 (1985); Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985); Walker v. Mitchell, 174 Ga. App. 738, 331 S.E.2d 82 (1985); Baldwin v. Associates Fin. Servs. of Am., Inc., 174 Ga. App. 795, 332 S.E.2d 21 (1985); John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 333 S.E.2d 856 (1985); Wilkes v. DOT, 176 Ga. App. 739, 337 S.E.2d 404 (1985); Pritchett v. Anding, 177 Ga. App. 34, 338 S.E.2d 503 (1985); Associated Software Consultants Org., Inc. v. Wysocki, 177 Ga. App. 135, 338 S.E.2d 679 (1985); Georgia Farm Bureau Mut. Ins. Co. v. Bestawros, 177 Ga. App. 667, 340 S.E.2d 645 (1986); Rivers v. State, 178 Ga. App. 310, 342 S.E.2d 781 (1986); King v. State, 178 Ga. App. 343, 343 S.E.2d 401 (1986); Boring v. McPherson, 178 Ga. App. 623, 344 S.E.2d 459 (1986); American Game & Music Serv., Inc. v. Knighton, 178 Ga. App. 745, 344 S.E.2d 717 (1986); Rice v. State, 178 Ga. App. 748, 344 S.E.2d 720 (1986); Carswell v. State, 179 Ga. App. 56, 345 S.E.2d 66 (1986); DOT v. Poole, 179 Ga. App. 638, 347 S.E.2d 625 (1986); Nash v. State, 179 Ga. App. 702, 347 S.E.2d 651 (1986); Almond v. State, 180 Ga. App. 475, 349 S.E.2d 482 (1986); Alexander v. State, 180 Ga. App. 640, 350 S.E.2d 284 (1986); White v. Archer Daniels Midland Co., 180 Ga. App. 829, 350 S.E.2d 788 (1986); Exley v. State, 180 Ga. App. 821, 350 S.E.2d 829 (1986); Beck v. State, 181 Ga. App. 681, 353 S.E.2d 610 (1987); Cox v. Cantrell, 181 Ga. App. 722, 353 S.E.2d 582 (1987); General Warranty Corp. Ins. Agents & Adm'rs v. Cameron-Hogan, Inc., 182 Ga. App. 434, 356 S.E.2d 83 (1987); Morris v. DeLong, 183 Ga. App. 124, 358 S.E.2d 285 (1987); Phillips v. State, 183 Ga. App. 194, 358 S.E.2d 480 (1987); Evans v. Harvey, 183 Ga. App. 284, 358 S.E.2d 668 (1987); Davis v. Charter By-The-Sea, Inc., 183 Ga. App. 213, 358 S.E.2d 865 (1987); Jones v. Davis, 183 Ga. App. 401, 359 S.E.2d 187 (1987); Shaw v. W.M. Wrigley, Jr., Co., 183 Ga. App. 699, 359 S.E.2d 723 (1987); Sharp v. State, 183 Ga. App. 641, 360 S.E.2d 50 (1987); Glenridge Unit Owners Ass'n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987); Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451 (1987); Dubberly v. P.F. Moon & Co., 184 Ga. App. 221, 361 S.E.2d 223 (1987); Precision Label Indus., Inc. v. Jones, 185 Ga. App. 161, 363 S.E.2d 605 (1987); Martin v. State, 185 Ga. App. 145, 363 S.E.2d 765 (1987); Carpet Transp., Inc. v. Dixie Truck Tire Co., 185 Ga. App. 181, 363 S.E.2d 840 (1987); Martini v. Nixon, 185 Ga. App. 328, 364 S.E.2d 49 (1987); Foskey v. Foskey, 257 Ga. 736, 363 S.E.2d 547 (1988); Mathis v. DOT, 185 Ga. App. 658, 365 S.E.2d 504 (1988); Westfall v. State, 185 Ga. App. 687, 365 S.E.2d 527 (1988); Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988); Booth v. State, 186 Ga. App. 342, 367 S.E.2d 77 (1988); Davis v. Metropolitan Atlanta Rapid Transit Auth., 186 Ga. App. 366, 367 S.E.2d 885 (1988); Georgia Am. Ins. Co. v. Mills, 187 Ga. App. 128, 369 S.E.2d 768 (1988); Lissmore v. Kincade, 188 Ga. App. 548, 373 S.E.2d 819 (1988); Pool Mkts. S., Inc. v. Moore, 189 Ga. App. 48, 374 S.E.2d 831 (1988); Kelly v. State, 189 Ga. App. 67, 375 S.E.2d 81 (1988); Little v. State, 189 Ga. App. 451, 376 S.E.2d 232 (1988); Martin v. State, 189 Ga. App. 483, 376 S.E.2d 888 (1988); Haun v. State, 189 Ga. App. 884, 377 S.E.2d 878 (1989); Martin v. State, 190 Ga. App. 486, 379 S.E.2d 170 (1989); Christopher v. State, 190 Ga. App. 393, 379 S.E.2d 205 (1989); Waters v. Spell, 190 Ga. App. 790, 380 S.E.2d 55 (1989); McCounly v. State, 191 Ga. App. 266, 381 S.E.2d 552 (1989); Dixson v. State, 191 Ga. App. 410, 382 S.E.2d 357 (1989); Worley v. State, 193 Ga. App. 58, 386 S.E.2d 879 (1989); Fulton County v. Collum Properties, Inc., 193 Ga. App. 774, 388 S.E.2d 916 (1989); Hood v. State, 193 Ga. App. 701, 389 S.E.2d 264 (1989); Fidelity Nat'l Bank v. Kneller, 194 Ga. App. 55, 390 S.E.2d 55 (1989); Adcock v. State, 194 Ga. App. 627, 391 S.E.2d 438 (1990); Doctors Hosp. v. Bonner, 195 Ga. App. 152, 392 S.E.2d 897 (1990); Milam v. Attaway, 195 Ga. App. 496, 393 S.E.2d 753 (1990); Isaacs v. Williams Bros., 195 Ga. App. 812, 395 S.E.2d 11 (1990); Joe N. Guy Co. v. Valiant Steel & Equip., Inc., 196 Ga. App. 20, 395 S.E.2d 310 (1990); N.D.T., Inc. v. Connor, 196 Ga. App. 314, 395 S.E.2d 901 (1990); Strickland v. DOT, 196 Ga. App. 322, 396 S.E.2d 21 (1990); Sycamore Pellet Sys. v. Southeastern Steam, Inc., 196 Ga. App. 717, 397 S.E.2d 6 (1990); Harrison v. Ellis, 199 Ga. App. 199, 404 S.E.2d 348 (1991); O'Quinn v. Southeast Radio Corp., 199 Ga. App. 491, 405 S.E.2d 314 (1991); Cobble v. State, 199 Ga. App. 29, 404 S.E.2d 134 (1991); Holmes v. Drucker, 201 Ga. App. 687, 411 S.E.2d 728 (1991); Anepohl v. Ferber, 202 Ga. App. 552, 415 S.E.2d 9 (1992); Crawford v. State, 203 Ga. App. 215, 416 S.E.2d 820 (1992); Summit-Top Dev., Inc. v. Williamson Constr., Inc., 203 Ga. App. 460, 416 S.E.2d 889 (1992); McDevitt & Street Co. v. K-C Air Conditioning Serv., Inc., 203 Ga. App. 640, 418 S.E.2d 87 (1992); Pope v. Pressley, 204 Ga. App. 115, 418 S.E.2d 635 (1992); Hicks v. Doe, 206 Ga. App. 596, 426 S.E.2d 174 (1992); Welch v. State, 207 Ga. App. 27, 427 S.E.2d 22 (1992); Crosby v. Spencer, 207 Ga. App. 487, 428 S.E.2d 607 (1993); Hesler v. State, 208 Ga. App. 495, 431 S.E.2d 138 (1993); Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405, 434 S.E.2d 450 (1993); McDuffie v. State, 210 Ga. App. 112, 435 S.E.2d 452 (1993); Wilson v. Muhanna, 213 Ga. App. 704, 445 S.E.2d 540 (1994); Nelson v. State, 213 Ga. App. 641, 445 S.E.2d 543 (1994); Brewton v. State, 216 Ga. App. 346, 454 S.E.2d 558 (1995); Sorrells v. Miller, 218 Ga. App. 641, 462 S.E.2d 793 (1995); Shilliday v. Dunaway, 220 Ga. App. 406, 469 S.E.2d 485 (1996); General Accident Ins. Co. v. Straws, 220 Ga. App. 496, 472 S.E.2d 312 (1996); Rhoden v. Department of Pub. Safety, 221 Ga. App. 844, 473 S.E.2d 537 (1996); Hawkins v. State, 267 Ga. 124, 475 S.E.2d 625 (1996); Bedeski v. Atlanta Coliseum, Inc., 224 Ga. App. 435, 480 S.E.2d 881 (1997); Ford v. Saint Francis Hosp., 227 Ga. App. 823, 490 S.E.2d 415 (1997); Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 491 S.E.2d 909 (1997); Moody v. Dykes, 269 Ga. 217, 496 S.E.2d 907 (1998)
DOT v. Cannady, 230 Ga. App. 585, 497 S.E.2d 72 (1998); Orr v. CSX Transp., Inc., 233 Ga. App. 530, 505 S.E.2d 45 (1998); Medina v. State, 234 Ga. App. 13, 505 S.E.2d 558 (1998); Witty v. McNeal Agency, Inc., 239 Ga. App. 554, 521 S.E.2d 619 (1999); Levine v. Choi, 240 Ga. App. 384, 522 S.E.2d 673 (1999); Conger v. State, 245 Ga. App. 399, 537 S.E.2d 798 (2000); Hammett v. State, 246 Ga. App. 287, 539 S.E.2d 193 (2000); Rogers v. State, 247 Ga. App. 219, 543 S.E.2d 81 (2000); Heston v. Lilly, 248 Ga. App. 856, 546 S.E.2d 816 (2001); Clark v. State, 251 Ga. App. 715, 555 S.E.2d 88 (2001); Colkitt v. State, 251 Ga. App. 749, 555 S.E.2d 121 (2001); Dorminey v. State, 258 Ga. App. 307, 574 S.E.2d 380 (2002); McConnell v. State, 263 Ga. App. 686, 589 S.E.2d 271 (2003); Wakefield v. State, 261 Ga. App. 474, 583 S.E.2d 155 (2003); Brown v. State, 268 Ga. App. 629, 602 S.E.2d 158 (2004); Stack-Thorpe v. State, 270 Ga. App. 796, 608 S.E.2d 289 (2004); King v. Zakaria, 280 Ga. App. 570, 634 S.E.2d 444 (2006); Jones v. State, 280 Ga. App. 287, 633 S.E.2d 806 (2006); Pirkle v. Turner, 281 Ga. 846, 642 S.E.2d 849 (2007); Lawyers Title Ins. Corp. v. New Freedom Mortg. Corp., 288 Ga. App. 642, 655 S.E.2d 269 (2007); Lewis v. Van Anda, 282 Ga. 763, 653 S.E.2d 708 (2007); Russell v. State, 289 Ga. App. 789, 658 S.E.2d 400 (2008); Coney v. State, 290 Ga. App. 364, 659 S.E.2d 768 (2008); Horton v. Hendrix, 291 Ga. App. 416, 662 S.E.2d 227 (2008); McKenzie v. State, 284 Ga. 342, 667 S.E.2d 43 (2008); Hobbs v. State, 299 Ga. App. 521, 682 S.E.2d 697 (2009); Mubarak v. State, 305 Ga. App. 419, 699 S.E.2d 788 (2010); Doe v. State, 306 Ga. App. 348, 702 S.E.2d 669 (2010); Goody Prods. v. Dev. Auth. of Manchester, 320 Ga. App. 530, 740 S.E.2d 261 (2013); Lamar v. All Am. Quality Foods, Inc., 323 Ga. App. 572, 746 S.E.2d 665 (2013); Pampattiwar v. Hinson, 326 Ga. App. 163, 756 S.E.2d 246 (2014); Khalia, Inc. v. Rosebud, 353 Ga. App. 350, 836 S.E.2d 840 (2019).
Requested Instructions
1. In General
Purpose of the written request to charge as required by O.C.G.A. § 5-5-24 requires such desired requests to be in writing in order to inform the court as to the jury instructions to be given and the statute, as amended, refers to all cases both civil and criminal. Whatley v. State, 162 Ga. App. 106, 290 S.E.2d 316 (1982).
Absent request for specific charge, and objection to failure to charge, error not reversible. Herring v. McLemore, 248 Ga. 808, 286 S.E.2d 425 (1982).
When litigant need not request instructions.
- O.C.G.A. § 5-5-24 does not relieve a litigant from the necessity of requesting instructions except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that the statute fails to provide the jury with the proper guidelines for determining guilt or innocence. Jackson v. State, 161 Ga. App. 650, 289 S.E.2d 525 (1982).
Requests to charge must be timely and properly submitted in writing. Slaughter v. Linder, 122 Ga. App. 144, 176 S.E.2d 450 (1970).
Changes to section have not made it unnecessary to file written requests to charge. Dixon v. State, 224 Ga. 636, 163 S.E.2d 737 (1968).
It is never error to deny oral request to charge. Slaughter v. Linder, 122 Ga. App. 144, 176 S.E.2d 450 (1970); Hudson v. Columbus, 139 Ga. App. 789, 229 S.E.2d 671 (1976).
Requests to charge must be made prior to arguments to jury.
- On appeal a party may not complain about court's failure to charge when no written requests to charge were received prior to arguments to jury. Ledbetter Bros. v. Holmes, 122 Ga. App. 514, 177 S.E.2d 824 (1970).
Where request is not timely or is not warranted by evidence.
- Even though written request to charge has been made by state or accused, trial court's failure to so charge is not error if (1) written request to charge has not been made at or before close of evidence, or (2) evidence does not warrant such requested charge. Bouttry v. State, 242 Ga. 60, 247 S.E.2d 859 (1978).
There was no abuse of discretion in the court's denial of the defendant's request that the state furnish proposed jury instructions 24 hours before trial. Pruitt v. State, 258 Ga. 583, 373 S.E.2d 192 (1988), cert. denied, 493 U.S. 1093, 110 S. Ct. 1170, 107 L. Ed. 2d 1072 (1990).
When a criminal defendant was tried on charges of kidnapping and murder, and after the court had recharged the jury three times on kidnapping, the defendant, for the first time, requested a charge on false imprisonment; the trial court did not err in failing to give the defendant's requested charge on false imprisonment; the request was not made at or before the close of the evidence, and the evidence did not authorize the charge. Peebles v. State, 260 Ga. 165, 391 S.E.2d 639 (1990).
Request must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in case. Slaughter v. Linder, 122 Ga. App. 144, 176 S.E.2d 450 (1970); Fowler v. Gorrell, 148 Ga. App. 573, 251 S.E.2d 819 (1978).
Requested charge should be given only when the charge embraces correct and complete principle of law which has not been included in general instructions given and when request is pertinent and adjusted to the facts of the case. Gates v. Southern Ry., 118 Ga. App. 201, 162 S.E.2d 893 (1968).
Unless request is all legal and pertinent, court need not give any part of it. Slaughter v. Linder, 122 Ga. App. 144, 176 S.E.2d 450 (1970).
Denial of request to charge is proper if any portion of it is inapt or incorrect. Fowler v. Gorrell, 148 Ga. App. 573, 251 S.E.2d 819 (1978).
Legal, pertinent, written requests to charge should generally be granted.
- Some issues cannot be raised except by virtue of special pleading, but in general under this section, if request is legal, pertinent, and in writing it should be given. Atlanta Coca-Cola Bottling Co. v. Burke, 109 Ga. App. 53, 134 S.E.2d 909 (1964) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Request to charge must be in writing. Dumas v. Stafford & Son, 22 Ga. App. 365, 95 S.E. 1009 (1918); Howard v. State, 233 Ga. App. 724, 505 S.E.2d 768 (1998), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).
Trial court did not err by failing to instruct the jury on the Statute of Frauds because, while the defendant made an oral, non-specific request, the defendant did not offer a written charge adjusted to the facts of the case; the defendant did not include the defense of the Statute of Frauds in the pretrial order and did not move to modify that order; the defendant did not raise the defense of the Statute of Frauds simply by stating that the defendant intended to rely on all applicable statutes governing contracts and all applicable legal principles and rules of contract law, quasi-contracts, and equitable remedies and relief; and the defendant's promise to the plaintiffs was one of indemnity, which generally fell outside the Statute of Frauds. Zambetti v. Cheeley Invs., L.P., 343 Ga. App. 637, 808 S.E.2d 41 (2017).
Requested charge which does not accurately state a correct principle of law should be refused. Georgia & Fla. Ry. v. Newton, 140 Ga. 463, 79 S.E. 142 (1913) (decided under former Penal Code 1910).
Requested charge not applicable to facts should be refused. Smith v. Satilla Pecan Orchard & Stock Co., 152 Ga. 538, 110 S.E. 303 (1922) (decided under former Penal Code 1910).
If requested charge is not accurately adjusted to facts of case, request must be denied. Emory Univ. v. Lee, 97 Ga. App. 680, 104 S.E.2d 234 (1958) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Argumentative requests.
- Request to charge, though correct, is properly refused if it is in the slightest degree argumentative. Emory Univ. v. Lee, 97 Ga. App. 680, 104 S.E.2d 234 (1958) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
That requested charge is substantially correct is not enough; it must contain a perfect statement of law applicable to question dealt with, to render it erroneous for court to refuse to give it in charge to the jury. Turnipseed v. State, 53 Ga. App. 194, 185 S.E. 403 (1936) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Request to charge is not perfect when inference is required to make it correct, and there is no error in refusing to charge such request. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17), aff'd, 184 Ga. 203, 190 S.E. 582 (1937) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Purpose for requiring that copies of jury instruction requests be given to opposing counsel.
- Requirement that copies of jury instruction requests be given to opposing counsel at the time the requests are submitted to court can serve no useful purpose other than to afford opposing counsel an opportunity to argue to the court, before granting or refusing of such request, counsel's contentions with respect to whether such requested charges should be given. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).
Reason subsection (b) contains no provision relating to objections to refusals of requests to charge.
- Unlike subsection (a), subsection (b) contains no provision relating to objections to refusals to grant requests to charge. This is because when party has presented to court written requests that it instruct jury on law as set forth therein, court normally affords such party at that time an opportunity to state grounds upon which he contends such submitted request to charge should be given. The court is thus at that time put on notice as to the grounds upon which it is urged such requests to charge should be given. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).
Extent of exemption of criminal defendants as to requests for instructions.
- While this section exempts defendant in criminal case from strict requirements imposed on litigants in civil cases to preserve issue on giving of or failure to give instructions to jury, it does not relieve him from necessity of requesting instructions, or making timely objection in trial court on failure to give instructions, except in those circumstances where omission is clearly harmful and erroneous as a matter of law in that it fails to provide jury with proper guidelines for determining guilt or innocence. Spear v. State, 230 Ga. 74, 195 S.E.2d 397 (1973); Sanders v. State, 138 Ga. App. 774, 227 S.E.2d 504 (1976); Lundy v. State, 139 Ga. App. 536, 228 S.E.2d 717 (1976); Weatherington v. State, 139 Ga. App. 795, 229 S.E.2d 676 (1976); Dorsey v. State, 141 Ga. App. 68, 232 S.E.2d 405 (1977); Mullins v. State, 144 Ga. App. 22, 240 S.E.2d 297 (1977); Richardson v. State, 144 Ga. App. 416, 240 S.E.2d 917 (1977); Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978); Byrd v. State, 156 Ga. App. 522, 275 S.E.2d 108 (1980); Brown v. State, 157 Ga. App. 473, 278 S.E.2d 31 (1981); Carr v. State, 183 Ga. App. 36, 357 S.E.2d 816, cert. denied, 183 Ga. App. 905, 357 S.E.2d 816 (1987).
While this section exempts the defendant in a criminal trial from the strict requirements imposed on litigants in civil cases to preserve issue on giving or failure to give instructions, this does not relieve the defendant from the necessity of requesting clarifying instructions or making clear the defendant's objection so that the trial court can exercise an opportunity to correct possible errors at most opportune point in proceedings and thus allow review by the appellate court. Bradham v. State, 148 Ga. App. 89, 250 S.E.2d 801 (1978), aff'd in part and rev'd in part on other grounds, 243 Ga. 638, 256 S.E.2d 331 (1979).
This section does not relieve the criminal defendant of the necessity of requesting instructions except in those circumstances where omission is clearly harmful and erroneous as a matter of law in that it fails to provide jury with proper guidelines for determining guilt or innocence. Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978).
Although a defendant in a criminal case is exempted from the requirements imposed on civil litigants to object to the giving of or failure to give jury instructions, the defendant is not relieved of the necessity of requesting instructions except when the omission is clearly harmful and erroneous as a matter of law in that the instruction fails to provide the jury with the proper guidelines for determining guilt or innocence. Sosebee v. State, 169 Ga. App. 370, 312 S.E.2d 853 (1983).
Supplemental instructions.
- Trial court did not violate O.C.G.A. § 5-5-24(b) in giving a charge on concurrent negligence after the close of evidence, as a conflict on the issue of concurrent negligence arose after the charge conference. Swanson v. Hall, 275 Ga. App. 452, 620 S.E.2d 576 (2005).
Ineffective assistance of counsel for failure to object not found.
- Trial counsel was not ineffective for failing to object to the trial court's inclusion of a simple assault charge after the charge conference at which the trial court stated that the charge would not be given, in violation of O.C.G.A. § 5-5-24(b), as the jury found the defendant guilty of simple assault on one of the aggravated assault charges so that the defendant failed to show how the failure to object prejudiced defendant's defense. Osterhout v. State, 266 Ga. App. 319, 596 S.E.2d 766 (2004).
2. Judge's Duty Regarding Proposed Action on Requested Charges
Court required to inform of proposed actions.
- Subsection (b) of O.C.G.A. § 5-5-24 requires a trial court to inform counsel of the court's proposed actions on requested charges prior to argument to the jury. Jiles v. Peters, 216 Ga. App. 288, 454 S.E.2d 178 (1995).
Subsection (b) of O.C.G.A. § 5-5-24 does not require a judge to accede to a party's requested charges, but merely requires the judge to inform the parties as to the judge's action on the requests prior to closing arguments, so as to allow the parties to argue their cases intelligently to the jury. Wozniuk v. Kitchin, 229 Ga. App. 359, 494 S.E.2d 247 (1997).
Purpose of requirement.
- Requirement of subsection (b) that judge inform parties prior to final argument of the judge's action on requested charges is designed to enable attorneys to argue their case to jury intelligently and on basis of guiding legal principles under which argument should be made. Daniels v. State, 137 Ga. App. 371, 224 S.E.2d 60 (1976).
Subsection (b) provides, in part, that the trial court "shall inform counsel of its proposed action upon the requests prior to their arguments to the jury . . . ." This is a mandatory rule, designed to permit counsel to argue the case intelligently before the jury. King v. State, 201 Ga. App. 391, 411 S.E.2d 278, cert. denied, 201 Ga. App. 904, 411 S.E.2d 278 (1991).
Failure to so inform parties not reversible error when no harm done.
- For reversal to be obtained for such inadvertent oversight of court failing to inform counsel as to court's proposed action on opposing party's requests to charge, it is necessary to show substantial prejudice to have resulted. Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972).
Trial judge's failure to inform counsel of the judge's intention regarding charges to the jury pursuant to subsection (b) is not reversible error when the record fails to show harm to the party involved. Braswell v. Owen of Ga., Inc., 128 Ga. App. 528, 197 S.E.2d 463 (1973); Brown v. State, 163 Ga. App. 661, 295 S.E.2d 581 (1982).
Mere failure to inform counsel of the court's intention to charge is not such an omission as will require the grant of a new trial in the absence of prejudice. Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8 (1981).
Trial court's failure to adhere to the mandate of subsection (b) of O.C.G.A. § 5-5-24 was harmless error when counsel was not prevented from arguing the substance of any of the requests to charge and the court charged on all legal principles contained in the requests. King v. State, 201 Ga. App. 391, 411 S.E.2d 278, cert. denied, 201 Ga. App. 904, 411 S.E.2d 278 (1991).
When closing arguments were already completed at the time counsel called attention to the fact the trial court had not gone over requests to charge, no harmful error resulted from the court's admission. Latimore v. State, 170 Ga. App. 848, 318 S.E.2d 722 (1984); Roberts v. State, 223 Ga. App. 167, 477 S.E.2d 345 (1996).
When the defendant was convicted of two counts of rape, the defendant could not show that the defendant was harmed when the trial court failed to notify trial counsel of the court's ruling on the instruction on the sexual-battery charge before closing arguments, much less plain error, because the defendant could not be found guilty of rape or sexual battery if the jury believed the defense that the defendant had consensual sex with the victims and they fabricated their rape allegations; and an argument that the defendant was guilty of sexual battery instead of rape would have been in direct conflict with the defendant's own theory of defense. Seals v. State, 350 Ga. App. 787, 830 S.E.2d 315 (2019).
Judge's noncompliance with subsection (b) not necessarily reversible error.
- In absence of request by counsel to be informed of judge's proposed action on requested charges, noncompliance with subsection (b) is not, in and of itself, reversible error. Post-Tensioned Constr., Inc. v. VSL Corp., 143 Ga. App. 148, 237 S.E.2d 618 (1977).
In the absence of any request by counsel to be informed of the judge's proposed action on requested charges, noncompliance with O.C.G.A. § 5-5-24 is not, in and of itself, reversible error. Thus, when counsel embark upon their summation without any request for such information, the trial judge may usually infer that they envisage no need for such information and treat the requirement as waived. Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8 (1981).
Prejudice must be shown to warrant reversal or new trial for noncompliance with subsection (b).
- Even if proper request is made, in order to warrant reversal or new trial for failure to comply with subsection (b) of this section, prejudice must be shown. Post-Tensioned Constr., Inc. v. VSL Corp., 143 Ga. App. 148, 237 S.E.2d 618 (1977).
Failure to inform counsel of the court's proposed action on the refusal to charge is not reversible error per se. In order to warrant a reversal or new trial for failure to comply with this rule, prejudice must be shown. The burden is on the complaining party to show harm. Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8 (1981).
There was no harmful error in the trial court's inclusion of a simple assault charge as a lesser included offense of aggravated assault after closing argument and after defendant's request for a simple assault charge was denied, in violation of O.C.G.A. § 5-5-24, as the defendant did not bring the matter to the trial court's attention nor did the defendant ask to reargue in light of the unexpectedly included charge. Osterhout v. State, 266 Ga. App. 319, 596 S.E.2d 766 (2004).
Judge's failure to file written requests with clerk not reversible error when no harm done.
- Where trial court violated section in failing to file written requests to charge with clerk, if no harm has been shown trial court should not be reversed. Nelson v. Seaboard Coast Line R.R., 125 Ga. App. 764, 188 S.E.2d 887 (1972); Adams v. State, 231 Ga. App. 279, 499 S.E.2d 105 (1998).
When trial judge misleads counsel regarding intended charge.
- When trial judge misleads counsel as to intended charge, severe injustice may result and counsel should be given opportunity, if justice requires, to reargue facts in light of changed law of case. Daniels v. State, 137 Ga. App. 371, 224 S.E.2d 60 (1976).
When defense counsel had been misled as to intended charge, counsel's remedy is to request to reargue the facts in the light of the charge given. Hudson v. State, 150 Ga. App. 126, 257 S.E.2d 312 (1979).
Beginning summation without inquiry into intended action on proposed charges.
- When counsel embark upon their summations without any request for information on court's proposed action on opposing party's requests to charge, trial judge may usually infer that they envisage no need for such information and treat requirement as waived. Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972).
Failure to inform counsel must be objected to.
- Failure of the trial judge to inform counsel as to which of the requested charges would be included in the trial court's instructions to the jury is clearly error. However, to effect a reversal of the case because of the trial judge's failure to comply with the provisions of this section it is necessary that counsel make a proper objection and perfect the record so that the appellate court will have the issue properly before the court for determination. Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8 (1981).
3. Application
Preliminary instructions.
- Denial of defendant's request for the trial court to give suggested preliminary jury instructions at the commencement of trial was not an abuse of discretion. Honeycutt v. State, 245 Ga. App. 819, 538 S.E.2d 870 (2000).
Requirements for requests to charge extend to pertinent Code sections which party desires included in charge. Slaughter v. Linder, 122 Ga. App. 144, 176 S.E.2d 450 (1970).
Oral request that court charge excerpt from decision of appellate court is insufficient to meet requirement in subsection (b) of this section that requests to instruct be written. Norman v. State, 121 Ga. App. 753, 175 S.E.2d 119 (1970), cert. denied, 401 U.S. 956, 91 S. Ct. 981, 28 L. Ed. 2d 240 (1971).
Request to charge submitted after closing arguments.
- When, at close of evidence, party made oral request to charge, which was denied, and written request to charge was filed by party after conclusion of closing arguments to jury, trial court did not err in refusing to give requested charge. Bouttry v. State, 242 Ga. 60, 247 S.E.2d 859 (1978).
Request submitted after commencement of opposing party's argument.
- Section clearly contemplates that any requests for instructions be submitted before argument begins, and when requests of counsel for defendant were not submitted to court until after solicitor general (now district attorney) commenced the attorney's argument, such requests were not timely submitted and it was not error for the court to refuse to give the instructions. Curtis v. State, 224 Ga. 870, 165 S.E.2d 150 (1968).
If one of several requests presented en bloc is erroneous court not required to give any.
- When series of propositions are presented en bloc in a single request to charge, the court is not required to give the instructions or any part of the instructions, if any one is erroneous or inapplicable to the case. Western Union Tel. Co. v. Owens, 23 Ga. App. 169, 98 S.E. 116 (1919) (decided under former Penal Code 1910); Port Wentworth Term. Corp. v. Leavitt, 28 Ga. App. 82, 110 S.E. 686 (1922);.
It is not error to refuse request to charge when part thereof states principle of law inapplicable to case. Johns v. State, 79 Ga. App. 429, 54 S.E.2d 142 (1949) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Charge need not be in exact language requested.
- Former rule that pertinent request to charge must be given in exact language requested notwithstanding that trial judge had already charged substantially on issue elsewhere has been removed by this section. Southern Ry. v. Grogan, 113 Ga. App. 451, 148 S.E.2d 439 (1966).
It is no longer essential that court give instruction in exact language of request; requirement of the law is satisfied when court instructs jury substantially upon principles embodied in request. Hardwick v. Price, 114 Ga. App. 817, 152 S.E.2d 905 (1966); Shelton v. Rose, 116 Ga. App. 37, 156 S.E.2d 659 (1967); Kendrick v. State, 123 Ga. App. 785, 182 S.E.2d 525 (1971); Jackson v. Miles, 126 Ga. App. 320, 190 S.E.2d 565 (1972); Bailey v. Todd, 126 Ga. App. 731, 191 S.E.2d 547 (1972), cert. denied, 409 U.S. 1113, 93 S. Ct. 927, 34 L. Ed. 2d 696 (1973); Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973); Brookhaven Supply Co. v. DeKalb County, 134 Ga. App. 878, 216 S.E.2d 694 (1975).
Court is not bound to instruct in language of request, or in immediate response to the request, if in substance at any time the instruction desired is given. Carnes v. State, 115 Ga. App. 387, 154 S.E.2d 781, cert. denied, 389 U.S. 928, 88 S. Ct. 287, 19 L. Ed. 2d 279 (1967).
It is not error to refuse requested charge when general instructions cover substance of request. Gates v. Southern Ry., 118 Ga. App. 201, 162 S.E.2d 893 (1968).
Refusal of request is not error when correct instruction by trial court dealing with principles of law embodied in request, although in more abstract terminology, is given. Johnson v. Myers, 118 Ga. App. 773, 165 S.E.2d 739 (1968).
Failure of court to give requested charge in exact language requested when charge given covered same principle of law is not ground for new trial. Harkness v. Harkness, 228 Ga. 184, 184 S.E.2d 566 (1971).
If it can be determined that point at issue was presented to jury in substantially as clear and understandable a manner as that requested, keeping in mind that a jury is a lay audience, there should be no reversal when language conveys correctly the intent of the law and is so framed as to be applied with understanding to fact situation. Jackson v. Miles, 126 Ga. App. 320, 190 S.E.2d 565 (1972).
Simply because a request to charge is apt, correct, and pertinent, it is not necessarily error to fail to charge it, but test is whether court substantially covered principles embodied therein or whether it was sufficiently or substantially covered by general charge. Seaboard Coast Line R.R. v. Thomas, 125 Ga. App. 716, 188 S.E.2d 891, aff'd, 229 Ga. 301, 190 S.E.2d 898 (1972).
It is no longer necessary to give exact language of requests to charge when same principles are fairly given to jury in general charge of court. Shirley v. State, 245 Ga. 616, 266 S.E.2d 218 (1980).
Since the repeal and reenactment of this section by Ga. L. 1965, p. 18, § 17, there is presently no requirement in this state that the court instruct the jury in the exact language of a request, even though the request may be correct as an abstract principle of law which is directly applicable to a material issue when the charge given by the court substantially covers the same principles. Gay v. City of Rome, 157 Ga. App. 368, 277 S.E.2d 741 (1981).
Since a trial court's charge on accomplice testimony was virtually identical to the charge on accomplice testimony contained in the pattern jury instructions and specifically approved by the Supreme Court of Georgia, the defendant could not, as a matter of law, have shown that this charge was harmful. Chapman v. State, 279 Ga. App. 200, 630 S.E.2d 810 (2006).
Prior inconsistent statement.
- Although the defendant's counsel failed to secure a transcript of the defendant's daughter's juvenile court proceeding, wherein the daughter claimed sole responsibility for having shoplifted various items from a store, it was not shown that such a transcript or a jury charge on the daughter's prior consistent statements would have caused the jury to reject the testimony of the store's asset protection agent that the agent observed the defendant tear packaging off items of merchandise in the shoplifting trial; accordingly, there was no ineffective assistance of the defendant's counsel in violation of the Sixth Amendment and Ga. Const. 1983, Art. I, Sec. I, Para. XIV, and the failure of the trial court to have given the jury prior consistent statement jury instructions under O.C.G.A. § 5-5-24(b) was not harmful error. Tucker v. State, 282 Ga. App. 807, 640 S.E.2d 310 (2006).
Judge need not give requested charge when same matter is covered in charge given.
- Reversal will not be granted because trial judge refused to give certain requested instructions to the jury, when same matter was fully and fairly presented in the charge given. Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
History of power of trial judge to refuse requested charges covered by general charge.
- Bibb Transit Co. v. Johnson, 107 Ga. App. 804, 131 S.E.2d 631 (1963) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Refusal to charge in accordance with oral request is equivalent of mere failure to charge. Ware v. State, 156 Ga. 749, 120 S.E. 528 (1923) (decided under former Penal Code 1910).
Trial court is not obligated to rewrite instruction which either party requests to be given. Tatum v. State, 57 Ga. App. 849, 197 S.E. 51 (1938) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Party who has requested a charge cannot complain thereof. Laing v. Bodiford, 25 Ga. App. 460, 103 S.E. 743 (1920) (decided under former Penal Code 1910).
Charges given at request or insistence of counsel for defendant furnished no ground for granting new trial at the defendant's instance. Coleman v. State, 141 Ga. 731, 82 S.E. 228 (1914) (decided under former Penal Code 1910).
When party in request to charge takes position at trial that there was a certain issue to be submitted to the jury, the party cannot justly complain in the party's motion for new trial that there was no such issue because evidence was undisputedly to the contrary. Davis v. Laird, 108 Ga. App. 729, 134 S.E.2d 467 (1963) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
When incompleteness in charge arose from party's requested instructions.
- Party will not be heard to complain that trial court failed to give complete charge to jury when incompleteness arose from instructions requested by that party and there was no request or objection regarding such incompleteness. Marlow v. Lanier, 157 Ga. App. 184, 276 S.E.2d 867 (1981).
Asserting error on appeal barred.
- Defendant's consent to reversal of the usual order of events, such that the jury was instructed before closing arguments were made, barred the defendant from asserting error on appeal. Williams v. State, 277 Ga. 853, 596 S.E.2d 597 (2004).
Trial court's alleged error in instructing the jury that the jury could consider the level of certainty shown by a witness about the witness's identification when addressing the reliability of identifications was waived since the defendant requested the instruction; because the defendant requested the instruction, substantial error review under O.C.G.A. § 5-5-24(c) was unavailable. Brewer v. State, 280 Ga. App. 582, 634 S.E.2d 534 (2006).
When the defendant requests that certain charge not be given the defendant may not thereafter complain that the trial court erred by not delivering the proper charge. Burton v. State, 151 Ga. App. 176, 259 S.E.2d 176 (1979).
Criminal defendant's failure to request charge or object to the charge's omission is decisive against the defendant.
- Where criminal defendant fails to request charge, or fails to object to trial court's omission to charge, such failure to request or object has been decisive against him. Thomas v. State, 234 Ga. 615, 216 S.E.2d 859, answer conformed to, 136 Ga. App. 165, 220 S.E.2d 736 (1975).
Refusal of proper request on doctrine of avoidance, when raised by evidence, is reversible error. Kroger Co. v. Roadrunner Transp., Inc., 634 F.2d 228 (5th Cir. 1981).
Refusal of requested charge on comparative negligence.
- When the court refused the defendant's request to charge on comparative negligence, and evidence created issues on defenses that the plaintiff failed to exercise ordinary care, the trial court erred in refusing upon request to charge the jury on application of the comparative negligence rule. Crafton v. Livingston, 114 Ga. App. 161, 150 S.E.2d 371 (1966).
State or accused may request charge on lesser crimes.
- State or accused may, by written application to trial judge at or before close of evidence, request the judge to charge on lesser crimes than are included in those set forth in the indictment or accusation, and the judge's failure to so charge as requested, if evidence warrants such requested charge or charges, shall be error. Bouttry v. State, 242 Ga. 60, 247 S.E.2d 859 (1978).
Entitlement to charge regarding polygraph results admitted at trial.
- When polygraph results are admitted at trial, either party is entitled, upon request, to have jury charged concerning meaning of this evidence. Ross v. State, 245 Ga. 173, 263 S.E.2d 913 (1980).
Court has discretion to hear objections to requests to charge.
- Subsection (b) does not require that counsel be offered opportunity before charge of court to object to requests to charge, although the court, in the court's discretion, may hear objections to requests at that time. Windsor Forest, Inc. v. Rocker, 115 Ga. App. 317, 154 S.E.2d 627 (1967).
Restatement of grounds supporting given charge.
- Court is afforded every opportunity to be informed as to contention of respective parties concerning jury instruction requests and no useful purpose could possibly be served by requiring that ground upon which counsel contends charge should be given be repeated after court has announced to counsel the court's decision that requested charge will not be given and has instructed the jury omitting such requested charge. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).
Party submitting request to charge is not required to restate grounds of objection to refusal to charge timely submitted written requests after court has heard argument on request and had made its ruling thereon. Meadows v. Oates, 156 Ga. App. 242, 274 S.E.2d 634 (1980).
Rule XV of the Local Rules of the Southern Judicial Circuit, which provides that "All requests to charge shall be filed in writing with the court, in duplicate and with supporting authorities, prior to the introduction of any evidence by any party," is not in conflict with O.C.G.A. § 5-5-24, which specifically permits the trial court to select an earlier time than the close of the evidence for the submission of requests to charge. Walker v. State, 168 Ga. App. 130, 308 S.E.2d 404 (1983).
When trial court gives to jury defendant's previously rejected charge on circumstantial evidence, but when defense counsel is not misled or uninformed other than as to this charge, and no request is made by defense counsel to argue the case as to the circumstantial evidence rule to the jury, the initial rejection of the requested instruction is not, by itself, a proper basis for the grant of a new trial. Thomas v. State, 168 Ga. App. 587, 309 S.E.2d 881 (1983).
Failure to request charge as to constitutional right not to testify.
- In the absence of a timely written request, the trial court does not err in failing to charge the jury that the defendant has a constitutional right not to testify and that no inference could be made as a result of the defendant's failure to testify on the defendant's own behalf. Stephens v. State, 157 Ga. App. 414, 278 S.E.2d 70 (1981).
Failure to instruct on a lesser included crime is not error, regardless of whether the evidence would have authorized or demanded such a charge, in the absence of a written request. Daniel v. State, 248 Ga. 271, 282 S.E.2d 314 (1981).
In the absence of a timely, written request, the failure to charge on a lesser-included offense is not error. Partridge v. State, 187 Ga. App. 325, 370 S.E.2d 173 (1988).
Timely, written request to charge a lesser included offense must be made by application to the trial judge at or before the close of the evidence. Jackson v. State, 213 Ga. App. 170, 444 S.E.2d 126 (1994).
Failure to give unrequested instruction on collateral issue.
- Defendant cannot complain about the trial court's failure to give an unrequested instruction on a collateral issue, especially when the omission is not clearly harmful and erroneous as a matter of law. Schubert v. State, 160 Ga. App. 227, 286 S.E.2d 514 (1981).
In aggravated assault prosecution, court complied with O.C.G.A. § 5-5-24 by informing counsel before closing argument of the court's proposed action on the requests to charge, by charging the jury after the arguments, and by filing with the clerk all of the submitted requests to charge. Simmons v. State, 172 Ga. App. 695, 324 S.E.2d 546 (1984).
Request after court's failure to charge sua sponte.
- Defendant was not erroneously denied the opportunity for re-argument in light of the trial court's decision to charge the jury as to robbery by intimidation since the charge on robbery by intimidation was given as the result of the state's objection to the trial court's failure to give a charge sua sponte, not as the result of the trial court's subsequent decision to give a request that had earlier been refused. Turner v. State, 180 Ga. App. 141, 348 S.E.2d 572 (1986).
Incomplete and inaccurate request not honored.
- When the defendant requested a charge on the defense of good character but the defendant's request was not a complete and, consequently, not an accurate statement of the law concerning "good character," the court was not bound to honor the request. Only exceptional cases require the charge without a request of good character. Williams v. State, 187 Ga. App. 355, 370 S.E.2d 210 (1988).
Failure to inform counsel of proposed action on requests.
- Trial court's failure to comply with the requirement that counsel be informed before closing argument of the trial court's proposed action on requests for jury instructions did not require reversal of the defendant's conviction since the jury charges involved were not supported by the evidence at trial and the error caused no harm to the defendant. Bentley v. State, 261 Ga. 229, 404 S.E.2d 101 (1991).
Sudden emergency instruction.
- In a fatal collision between a freight train and a pickup truck, even assuming that it was error to give the sudden emergency charge, it did not rise to the level of substantial error harmful as a matter of law because the railroad presented evidence that the motor vehicle accident resulting from the negligence of the drivers of the pickup truck and van proximately caused the decedent's death, rather than the actions of the locomotive engineer; and it presented evidence that any additional blowing of the horn would not have changed the outcome, given that the decedent was visibly dazed from the severe impact of the motor vehicle accident, and multiple other warning signals did not cause the decedent to flee from the railroad tracks. Smith v. Norfolk Southern Ry., 337 Ga. App. 604, 788 S.E.2d 508 (2016), cert. denied, No. S16C1837, 2017 Ga. LEXIS 119 (Ga. 2017).
Jury Charge
1. In General
Perfection not required.
- Dialectical perfection, metaphysical nicety, abstract inerrancy, are not expected or required of state trial courts. Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972).
Jury charge that is "harmful as a matter of law" within the meaning of O.C.G.A. § 5-5-24(c) is one that is so blatantly apparent and prejudicial that it raises the question of whether the losing party has been deprived of a fair trial because of it, or a gross injustice has resulted that is directly attributable to the alleged error. Mercker v. Abend, 260 Ga. App. 836, 581 S.E.2d 351 (2003).
Charge is responsibility of court and not of counsel. A-1 Bonding Serv., Inc. v. Hunter, 125 Ga. App. 173, 186 S.E.2d 566 (1971), aff'd, 229 Ga. 104, 189 S.E.2d 392 (1972).
In all civil cases the jury shall receive the law exclusively from trial judge and any departure from this rule will constitute reversible error. Metropolitan Publishers Representatives, Inc. v. Arnsdorff, 153 Ga. App. 877, 267 S.E.2d 260 (1980).
Reading of law to court in presence of jury by counsel constitutes reversible error. Central of Ga. R.R. v. Sellers, 129 Ga. App. 811, 201 S.E.2d 485 (1973).
Court's duty as to charging jury is to charge on law as to controlling, material, substantial, and vital issues. Fowler v. Gorrell, 148 Ga. App. 573, 251 S.E.2d 819 (1978).
Charge must include law of case pertaining to substantial issues, whether or not requested.
- Law of case must be given to jury to extent of covering substantial issues made by evidence, whether requested or not, or attention be called to it or not; otherwise verdict will be set aside. Fowler v. Gorrell, 148 Ga. App. 573, 251 S.E.2d 819 (1978).
Charges must be relevant and necessary.
- Trial court is required "after arguments are completed" to instruct comprehensively on the law applicable to the case, i.e., those charges which are relevant and necessary to weigh the evidence and enable the jury to discharge the judge's duty, and which would constitute error if not given. Griffith v. State, 264 Ga. 326, 444 S.E.2d 794 (1994).
Instructions are sufficient which substantially cover issues made by pleadings and evidence, absent a timely written request. Siegel v. 1156 Woodland, Inc., 115 Ga. App. 178, 154 S.E.2d 263 (1967).
Charge should be sufficiently clear to be understood.
- It is not necessary in considering a charge to assume a possible adverse construction, but charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. Clark v. State, 153 Ga. App. 829, 266 S.E.2d 577 (1980).
Court should not give conflicting rules of law in charge and leave jury to choose between the rules. Johnson v. State, 148 Ga. App. 702, 252 S.E.2d 205 (1979).
Jury instructions must always be viewed as a whole. Shirley v. State, 245 Ga. 616, 266 S.E.2d 218, cert. denied, 449 U.S. 879, 101 S. Ct. 227, 66 L. Ed. 2d 102 (1980).
Charges may be made prior to end of evidence's submissions.
- It is not error for certain charges to be made to the jury prior to and during the receipt of evidence, nor is it error to instruct the jury concerning their duties before any evidence is received. Hammond v. State, 169 Ga. App. 97, 311 S.E.2d 523 (1983).
Preliminary instructions no substitute for complete jury instructions.
- As a general rule, preliminary instructions given before evidence is presented cannot serve as a substitute for complete jury instructions required by O.C.G.A. § 5-5-24 after closing arguments are completed. Massey v. State, 270 Ga. 76, 508 S.E.2d 149 (1998).
Charge containing two distinct propositions which conflict with each other is calculated to leave the jury in such a confused condition of mind that the jury cannot render an intelligible verdict, and requires the grant of a new trial. Clements v. Clements, 247 Ga. 787, 279 S.E.2d 698 (1981).
Whole charge may be sound even if disjointed fragments are objectionable.
- While the specific portion of a charge of which complaint is made, when torn asunder and considered as a disjointed fragment, may be objectionable, when put together and considered as a whole, the charge may be perfectly sound. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).
Charge is intended to state and explain law.
- Province of jury is to ferret out and determine questions of fact through the jury's own process of reasoning. Emory Univ. v. Lee, 97 Ga. App. 680, 104 S.E.2d 234 (1958) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Charge must cover substantial, controlling issues made by pleadings and evidence.
- It is duty of trial judge in every case, with or without request, to charge jury fully and correctly upon all substantial and controlling issues made by pleadings and evidence. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
It is duty of court, even without request, to give appropriate instructions on every substantial and controlling issue raised by pleadings and evidence. McCrackin v. McKinney, 52 Ga. App. 519, 183 S.E. 831 (1936) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Purpose of requiring written instructions is to prevent dispute as to what was charged. Citizens Bank v. Fort, 15 Ga. App. 427, 83 S.E. 678 (1914) (decided under former Penal Code 1910).
It is necessary that it explicitly appear to jury that judge personally gives instructions. Georgia R.R. & Banking Co. v. Flowers, 108 Ga. 795, 33 S.E. 874 (1899); Blandon v. State, 6 Ga. App. 782, 65 S.E. 842 (1909).
Correctness of charge must be determined by the whole, taken together.
- If, taking all instructions collectively, the law seems to have been properly expounded to the jury, the judgment will not be reversed, though some one opinion may be erroneous, as correctness of charge must be determined by the whole, taken together. Ellis v. Britt, 181 Ga. 442, 182 S.E. 596 (1935) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Charge though abstractly correct is nevertheless erroneous unless authorized by evidence. Groover v. Cudahy Packing Co., 61 Ga. App. 707, 7 S.E.2d 287 (1940) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
To justify charge on given subject, there need not be direct evidence on that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. Hawkins v. State, 80 Ga. App. 496, 56 S.E.2d 315 (1949) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
General instructions previously given may warrant refusal of specific charge. Bank of Lafayette v. Phipps, 30 Ga. App. 769, 119 S.E. 427 (1923) (decided under former Penal Code 1910).
One cannot complain of charge which gives one's unwarranted defense. Stripling v. Calhoun, 98 Ga. App. 354, 105 S.E.2d 923 (1958) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Legally correct, pertinent charge not rendered erroneous by failure to charge another pertinent principle.
- Charge that is otherwise legally correct, applicable, and pertinent to issues in case is not rendered erroneous by failure of court to charge another pertinent legal principle. Wilson v. Harrell, 87 Ga. App. 793, 75 S.E.2d 436 (1953) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Excerpt from charge of trial court which is correct in itself is not rendered erroneous because some other essential and correct principle of law is not included therein or added thereto. Hudson v. Cole, 102 Ga. App. 300, 115 S.E.2d 825 (1960) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
In such a case, the motion for a new trial should assign error on the failure of the court to charge the other essential and correct principle of law involved and not on the charge given. Hudson v. Cole, 102 Ga. App. 300, 115 S.E.2d 825 (1960) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
To cure erroneous charge.
- Fact that judge also gave correct charge on avoiding negligence did not cure error when he did not call jury's attention to erroneous charge and correct or retract it. Brooks v. Wofford, 88 Ga. App. 731, 77 S.E.2d 563 (1953) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
It is not presumed that jury pays more attention to incorrect charges than to others. Fievet v. Curl, 96 Ga. App. 535, 101 S.E.2d 181 (1957) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Court may, in the court's discretion, recharge jury without request from the jury. Hyde v. State, 196 Ga. 475, 26 S.E.2d 744 (1943) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Court has discretion to supplement charge or give additional charge after jury retires.
- Court, after having seemingly completed the charge and instructed the jury to retire, has discretion in supplementing charge or in giving an additional charge to the jury. Southern Ry. v. Lee, 59 Ga. App. 316, 200 S.E. 569 (1938) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Judge may charge contentions made by pleadings.
- It was not reversible error to state in charge of court contentions of parties as made by pleadings, especially when the court instructed the jury that pleadings were not evidence and were not to be so considered. Langran v. Hodges, 60 Ga. App. 567, 4 S.E.2d 489 (1939) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Court may state contentions made by petition though some are unsupported by evidence.
- It is not improper, in charging jury, to state contentions made by allegations of the petition, or to give them by a narrative reading of the petition, even though some of the contentions in either instance are unsupported by evidence. Limbert v. Bishop, 96 Ga. App. 652, 101 S.E.2d 148 (1957) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Court sufficiently states contentions by referring jury to pleadings.
- When contentions of parties to suit are not complicated and can be easily ascertained by jury from inspection of the pleadings, the court sufficiently states the contentions of the parties by referring the jury to the pleadings. Tharpe v. Cudahy Packing Co., 60 Ga. App. 449, 4 S.E.2d 49 (1939) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
It is error to instruct as to contention of plaintiff which has been stricken from petition and as to which no evidence was introduced. Ellison v. Robinson, 96 Ga. App. 882, 101 S.E.2d 902 (1958) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Absent request, charge need not cover matters merely collateral to main issue.
- Mere failure to charge upon minor points to which court's attention was not called at the time, is not ground for new trial. Wiley v. State, 3 Ga. App. 120, 59 S.E. 438 (1907).
It is not error, in absence of timely written request, to fail to charge with reference to matters merely collateral or illustrative of main issues. McCrackin v. McKinney, 52 Ga. App. 519, 183 S.E. 831 (1936) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
In absence of timely written request, trial court's failure to charge upon incidental or collateral matters is not error. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
New trial not warranted by slight errors and inaccuracies of expression not calculated to mislead. Weeks v. Reliance Fertilizer Co., 23 Ga. App. 128, 97 S.E. 664 (1918) (decided under former Penal Code 1910).
Significance to be attached to technical words when used in charge should be explained so that jury might comprehend full import of instructions given them. City of Summerville v. Sellers, 94 Ga. App. 152, 94 S.E.2d 69 (1956) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Court need not draw distinctions between technical terms whose general meanings are commonly understood.
- When charge embraces section of Code which contains technical words or expressions, the meaning of which is probably not understood by a person unlearned in the law, court should so define them as to convey to the jury a correct idea of their meaning, but it is unnecessary for the court, even upon request, to explain words and expressions which are of ordinary understanding and self-explanatory. Floyd v. State, 58 Ga. App. 867, 200 S.E. 207 (1938) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Generally, in absence of proper written request so to do, it is not cause for a new trial that court, in charging jury, failed to define or draw distinctions between technical terms, when essential contentions and rules of law were given, and especially when general meaning and effect of such terms are commonly understood. A.A.A. Hwy. Express, Inc. v. Hagler, 72 Ga. App. 519, 34 S.E.2d 462 (1945) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Failure to define defense relied upon.
- When on trial of defendant charged with crime of murder, defense relied on was that homicide was result of accident or misfortune, and court correctly charges jury the law in relation thereto, it was not error for court to omit to define what would constitute accident or misfortune, in absence of request so to do. Daniel v. State, 171 Ga. 335, 155 S.E. 478 (1930) (decided under former Penal Code 1910).
Failure to define negligence or instruct as to proximate cause, absent request, is not error. Southern Grocery Stores, Inc. v. Cain, 50 Ga. App. 629, 179 S.E. 128 (1935) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Failure to charge on defense of misidentification.
- When a trial court charged the jury fully on the presumption of innocence, reasonable doubt, burden of proof, credibility of witnesses, and impeachment of witnesses, it is not error to fail to charge, sua sponte, on identification. Clay v. State, 232 Ga. App. 656, 503 S.E.2d 560 (1998).
Failure to charge on witness identification not error.
- Trial court did not err in failing to charge the jury on witness identification with regard to a defendant's trial for armed robbery and other crimes as the defendant never requested the charge and identification was not an issue since there was no eyewitness testimony that specifically identified the defendant as the perpetrator of the armed robbery or of the theft of the pickup truck. Johnson v. State, 293 Ga. App. 32, 666 S.E.2d 452 (2008).
Instructing that allegations of negligence are not supported by proof.
- In absence of written request so to do, it is not necessary for court to instruct jury that any one or more allegations of negligence in petition are not supported by proof and must not be considered by the jury. Black & White Cab Co. v. Clark, 67 Ga. App. 170, 19 S.E.2d 570 (1942) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
Failure to charge on impeachment of witnesses, absent timely, written request, is not error. Robinson v. State, 114 Ga. 445, 40 S.E. 253 (1901); Williamson v. State, 143 Ga. 267, 84 S.E. 584 (1915) (decided under former Penal Code 1910); Ware v. State, 156 Ga. 749, 120 S.E. 528 (1923) (decided under former Penal Code 1910).
Failure to charge upon burden of proof does not require new trial, absent proper request. Knapp Bros. Mfg. Co. v. Cook, 171 Ga. 330, 155 S.E. 321 (1930) (decided under former Penal Code 1910).
Charging upon theory entirely dependent on defendant's statement.
- Trial court is not required to give to the jury instructions upon any theory which depends for its existence solely upon the defendant's statement, unless there be presented to court before beginning the court's charge an appropriate written request. Marsh v. State, 174 Ga. 83, 161 S.E. 817 (1931) (decided under former Penal Code 1910).
Requirements for charge if multiple defendants.
- While it would have been better had a trial court explicitly told a jury to decide the guilt or innocence of each codefendant separately, the court's instructions were not sufficiently prejudicial to deprive the defendant of a fair trial, especially since the defendant neither failed to request such an instruction nor made any objection to the trial court's charge. Miller v. State, 258 Ga. App. 322, 574 S.E.2d 392 (2002).
Charge on element of intent.
- Trial court properly instructed the jury that, in order to convict the defendant, a finding of intent was required; then, the trial court differentiated the types of intent involved and read the elements of each crime directly from the statutes for the jury's consideration and thus, as a whole, the jury instructions appropriately enabled the jury to judiciously determine the guilt or innocence of the defendant. Williams v. State, 252 Ga. App. 280, 556 S.E.2d 170 (2001).
No objectionable summary of reasonable doubt standard.
- Trial court correctly charged the jury as to the rape count of the indictment and its lesser included offenses and properly instructed the jury as to the state's burden to prove the defendant's guilt beyond a reasonable doubt, substantially in accordance with the pattern charge because there was no objectionable summary of the reasonable doubt standard as an honest belief, and while the best practice would not have been to employ the word "believe" in the court's charge, the trial court did not improperly summarize the burden of proof or otherwise confuse the jury in doing so; the trial court made no attempt to summarize the court's reasonable doubt charge as an honestly held belief or to otherwise explain the charge, and twice after giving the charge, the trial court made reference to the court's reasonable doubt charge as initially given by instructing the jury that the jury could convict the defendant of rape and child molestation if the jury believed beyond a reasonable doubt that the defendant was guilty thereof. Alexander v. State, 308 Ga. App. 245, 707 S.E.2d 156 (2011).
2. Recharge and Correction of Erroneous Charge
When jury requests recharge on any point, it is duty of court to do so. Mathews v. Taylor, 155 Ga. App. 2, 270 S.E.2d 247 (1980).
It is not necessary on recharge to cover subject in toto. Creamer v. State, 229 Ga. 704, 194 S.E.2d 73 (1972).
Judge is not required to restate entire charge when jury requests only partial recharge. Andrews v. Lovell, 145 Ga. App. 246, 243 S.E.2d 666 (1978).
Trial court has discretion to recharge in full or only upon points requested. Williams v. State, 151 Ga. App. 765, 261 S.E.2d 487 (1979).
Correction of erroneous charge.
- When incorrect charge has been called to the jury's attention, and withdrawn from the jury, and a correct charge given, there is no merit in assignment of error complaining of incorrect charge. Jones v. State, 246 Ga. 109, 269 S.E.2d 6 (1980).
When erroneous statement is made, it is not cured by correct statement in another portion of charge unless jury's attention is called to correction by a retraction of erroneous statement or in some other like manner. Johnson v. State, 148 Ga. App. 702, 252 S.E.2d 205 (1979).
Trial court did not err in denying the defendant's motion for mistrial because it was within the trial court's discretion to decide whether a mistrial was the only corrective measure or whether any prejudicial effect of a jury instruction handout error could otherwise be corrected; the trial court did not abuse the court's discretion in determining that any prejudicial effect could be adequately addressed by remedial instructions, together with a correct copy of the jury charge, such that a mistrial was not the only corrective measure that would preserve defendant's right to a fair trial, and the charge as a whole, including the remedial actions taken by the trial court, was not likely to confuse the jury. Britton v. State, 310 Ga. App. 742, 713 S.E.2d 914 (2011).
Purpose of subsection (a) of O.C.G.A. § 5-5-24 is to allow correction of errors in the charge when there is still time to do so. Vaughn v. Protective Ins. Co., 243 Ga. App. 79, 532 S.E.2d 159 (2000).
Failure to recharge held error.
- Trial court erred by failing to recharge the jury on the presumption of innocence after the close of evidence and completion of arguments by counsel. Blandburg v. State, 209 Ga. App. 752, 434 S.E.2d 510 (1993).
No error in recharge.
- Because the jury in defendant's criminal matter requested clarification for purposes of the jury's deliberations, whereupon the trial court recharged the jury on the offense of aggravated assault, in violation of O.C.G.A. § 16-5-21, such was not error under O.C.G.A. § 5-5-24(c) or under the holding in Dukes, as the initial charge and the recharge were not based on the entire aggravated assault statute but instead, were only based on that part of the O.C.G.A. § 16-5-21 that related to the allegations in the indictment. Johnson v. State, 279 Ga. App. 669, 632 S.E.2d 688 (2006).
No error in failure to recharge.
- Trial court's error in failing to comply with O.C.G.A. § 5-5-24(b) was harmless given the strength of the evidence of the defendant's guilt, and given that the jury deliberated the same day that the jury were given the instructions as to the presumption of innocence and reasonable doubt; it was highly probable that the trial court's failure to repeat the instructions as to the presumption of innocence and reasonable doubt in the final charge did not contribute to the verdict because the trial court charged the jury on the principles of reasonable doubt and the presumption of innocence in the preliminary charge, referred the jury back to those instructions in the jury's final charge, and the court did so in the context of a one-day trial. Tidwell v. State, 312 Ga. App. 468, 718 S.E.2d 808 (2011), cert. denied, No. S12C0473, 2012 Ga. LEXIS 277 (Ga. 2012).
3. Application
Cautionary instructions are not favored since in most instances the instructions are productive of confusion and tend to restrict jury's untrammeled consideration of case. Herman v. Boyer, 154 Ga. App. 617, 269 S.E.2d 107 (1980).
Preliminary charges on presumption of innocence and other issues not required.
- Defendant's trial counsel was not ineffective in failing to request that the trial court give preliminary instructions regarding the presumption of innocence, reasonable doubt, or the burden of proof because these doctrines were presented in the trial court's charge at the close of evidence as required by O.C.G.A. § 5-5-24(b). Decapite v. State, 312 Ga. App. 832, 720 S.E.2d 297 (2011).
Court must exercise care to avoid repetitious charges.
- Care must be exercised to see that requested charges on same point will not subject court's charge to criticism that the charge is unduly repetitious; the fact that one party happened to request repetitious charges will not immunize charge from criticism. Gates v. Southern Ry., 118 Ga. App. 201, 162 S.E.2d 893 (1968).
Giving of redundant requests is more likely error than exercise of restrictive discretion.
- It is trial court's duty to see that charge is fair in any and all events. In carrying out that duty trial judges should bear in mind that error is more likely to exist in a too liberal giving of redundant requests than from exercising of restrictive discretion in charging the jury. Gates v. Southern Ry., 118 Ga. App. 201, 162 S.E.2d 893 (1968).
Charge which is not applicable to facts should not be given. Todd v. State, 149 Ga. App. 574, 254 S.E.2d 894 (1979).
When any evidence supports particular point, it is not error to charge law regarding such point. Smith v. Lott, 246 Ga. 366, 271 S.E.2d 463 (1980).
Charge on damages.
- Instruction that the only issue was the amount of damages, if any, and the jury could find from "absolutely nothing to anything" was not error because there was some evidence that the plaintiff suffered no damages as a result of the accident. Wright v. Barnes, 240 Ga. App. 684, 524 S.E.2d 758 (1999).
Affirmative defense need not be specifically charged if case as a whole is fairly presented.
- If affirmative defense is raised by evidence, including defendants' own statements, trial court must present affirmative defense to jury as part of case in the jury's charge, even absent a request; such affirmative defense, however, need not be specifically charged if case as a whole is fairly presented to jury. Booker v. State, 247 Ga. 74, 274 S.E.2d 334 (1981).
Charge on good character is only required when direct examination relates to general reputation, good or bad. Witnesses' opinion of appellant while sober did not establish the witnesses' knowledge of the witnesses' general reputation in the community so as to place the appellant's character in issue. Aldridge v. State, 247 Ga. 142, 274 S.E.2d 525 (1981).
Charge on circumstantial evidence is demanded only when case is wholly dependent thereon. Hudson v. State, 127 Ga. App. 452, 193 S.E.2d 919 (1972).
Necessary charge when guilt of defendant depends solely on circumstantial evidence.
- When guilt of defendant is dependent solely on circumstantial evidence it is error to fail to charge that if proved facts are consistent with theory of innocence, defendant should be acquitted. Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).
Failure to object to a jury charge in a criminal case constituted a waiver except when there had been a substantial error in the charge which was harmful as a matter of law. Jones v. State, 252 Ga. App. 332, 556 S.E.2d 238 (2001).
Because the defendant failed to object to the trial court's jury charge on aggravated stalking or reserve exceptions to the charge, the defendant waived the claim for appellate review; the trial court's instruction that "the existence of a written order is presumptive evidence of notice to the defendant" was not harmful as a matter of law. Presley v. State, 307 Ga. App. 528, 705 S.E.2d 870 (2011).
Failure to object to a jury charge in a civil case constituted a waiver.
- Passenger waived any error in the trial court's charge to the jury on the duty of a guest passenger with respect to the negligence of the driver because it was an incomplete statement of the law as the passenger failed to object to the charge below; under O.C.G.A. § 5-5-24(a), the appellate court could not consider the claim for the first time on appeal. McCannon v. Wilson, 267 Ga. App. 815, 600 S.E.2d 796 (2004).
Failure to object to jury charge in probate court proceeding.
- As to the use of the term "lunatic" in a probate court's jury instructions in a will contest case, the relatives made no objection to the instruction at the conclusion of the probate court's instruction; therefore, the relatives were not permitted to complain of the instruction on appeal. This was not a situation in which review is warranted pursuant to O.C.G.A. § 5-5-24(c). Kersey v. Williamson, 284 Ga. 660, 670 S.E.2d 405 (2008).
Instruction on general legal principles necessary to reach correct verdict.
- Upon trial of criminal case, trial judge with or without request should instruct jury as to general principles of law which of necessity must be applied in reaching correct verdict on issues. Tift v. State, 133 Ga. App. 455, 211 S.E.2d 409 (1974).
Court need not instruct jury regarding "inherent pardoning power" during guilt-innocence phase of criminal trial. Chafin v. State, 246 Ga. 709, 273 S.E.2d 147 (1980).
Instructing jurors to vote consistently with individual judgment.
- When instructions were conditioned on each juror voting consistently with the juror's individual judgment the fact that the court omitted to charge that jurors should not abandon the jurors' convictions to be congenial did not constitute a deprivation of due process. Byrd v. State, 156 Ga. App. 522, 275 S.E.2d 108 (1980).
No need to assume a possible adverse construction.
- Charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. Howell v. State, 157 Ga. App. 451, 278 S.E.2d 43 (1981).
Failure to charge on presumption of innocence.
- Trial court's failure to properly charge the jury after closing arguments on the presumption of innocence, burden of proof, and the standard of proof was reversible error. The error was not harmless because the jury was presented with conflicting testimony and the eyewitness was an informant whose identity was not revealed to the defendant. Little v. State, 230 Ga. App. 803, 498 S.E.2d 284 (1998).
Jury instruction did not denigrate the presumption of innocence by informing the petit jury that the grand jury had already determined that there was sufficient evidence to warrant a trial when the judge specifically instructed the jury that "every person is presumed innocent until proved guilty." Catchings v. State, 256 Ga. 241, 347 S.E.2d 572 (1986).
Failure of charge to indicate which of several counts may support punitive damages.
- It is error to deny the defendant's motion for new trial on the issue of punitive damages when the plaintiff sued the defendant on two counts, only one of which could support an award of punitive damages, but the trial court's charge did not so indicate and the Court of Appeals was, therefore, unable to determine the count upon which the jury hinged the jury's award of punitive damages. Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981).
In plaintiff patient's medical malpractice suit against the defendants, a doctor and the doctor's professional corporation, the trial court did not err in refusing to give the patient's requested jury charge that a patient was entitled to believe and rely upon the affirmative representations of the patient's doctor, and that, while under the doctor's care, the patient had no duty to investigate or confirm the truth or accuracy of the doctor's representations, as: (1) the patient failed to show how the charge was relevant in relation to the disputed issue of whether the doctor was negligent in failing to refer the patient to a specialist; and (2) the charge was not required even if, as the patient contended, the patient's credibility was at issue, because the trial court adequately charged the jury on credibility. Mercker v. Abend, 260 Ga. App. 836, 581 S.E.2d 351 (2003).
New trial not warranted since jury charge in medical malpractice case proper.
- New trial was not warranted in a widow's action against a medical practice, alleging multiple claims that arose from her husband's death following cardiac surgery by the practice, as there was no error in the trial court's jury instructions on the standard of care that applied to the health care professionals, which included the doctors and nurses. Sagon v. Peachtree Cardiovascular & Thoracic Surgs., P.A., 297 Ga. App. 379, 677 S.E.2d 351 (2009).
Instruction on rules of road.
- There was no substantial error in the jury charge when even though a certified copy of the driver's guilty plea to driving on the wrong side of the road was entered in evidence, it was not an admission of liability, and the injured person still had to establish the driver's negligence, causation, and damages; thus, there was no injustice in instructing on the rules of road, and when the administrator for the driver's estate failed to object to those charges, the administrator was not entitled to relief under the substantial error rule. Setliff v. Littleton, 264 Ga. App. 711, 592 S.E.2d 180 (2003).
Negligent hiring, retention, and entrustment instruction.
- In an action arising from a collision between an automobile driver and a truck driver, the jury's punitive damages verdict against the employer of the truck driver was improper as the employer could not be vicariously liable when the truck driver had been discharged from personal liability because the automobile driver failed to request instructions to charge on negligent hiring, retention, and entrustment and failed to object on the instructions given under O.C.G.A. § 5-5-24(a). Am. Material Servs. v. Giddens, 296 Ga. App. 643, 675 S.E.2d 540 (2009).
Charge on retreat required when defendant claimed self-defense.
- Trial court erred in failing to charge a jury on the principles of retreat even thought the request for the instruction was made orally because self-defense was the defendant's sole defense, the prosecution placed the concept of retreat in issue during cross-examination of the defendant, and evidence of the defendant's guilt on charges that included aggravated assault was not overwhelming. Felder v. State, 291 Ga. App. 740, 662 S.E.2d 826 (2008).
Failure to object to jury instruction regarding damages.
- Although the condemnee contended that the trial court erred in failing to inform the jury that the jury could consider the right to cure as a part of consequential damages, the court was correct in explaining to trial counsel that evidence of damage to property as a result of a taking, as represented by a cost to cure, may be considered a factor in establishing the reduced fair market value of the remaining property after the taking although the cost to cure may not be recovered as a separate element of damage; although the trial court instructed the jury that the cost to cure may not be recovered as a separate element of damage, the court did not inform the jury that the cost to cure could be a factor in establishing the reduced fair market value of the remaining property after the taking. But the condemnee did not take advantage of the opportunity provided by the court to have the condemnee's expert clarify cost to cure for the jury, and the condemnee waived any claim of error because the condemnee made no objection following the court's instruction. Moreover, the appellate court found no substantial error in the court's instruction that was harmful as a matter of law in light of the court's charge to the jury at the end of trial concerning consequential damages. RNW Family P'ship, Ltd. v. DOT, 307 Ga. App. 108, 704 S.E.2d 211 (2010).
Failure to instruct that counsel's arguments were not evidence.
- In a slip and fall case, although the final instructions failed to instruct the jury that argument of counsel did not constitute evidence, the trial court covered this issue in preliminary instructions, and the charge was not so blatantly prejudicial as to deprive the store patron of a fair trial. Holloway v. Kroger Company, 335 Ga. App. 705, 782 S.E.2d 805 (2016).
Charge on suicide in medical malpractice action.
- In a medical malpractice suit, the complained-of charge did not amount to a substantial error as a matter of law because the defendants failed to object to the charge and, in considering the charge as a whole, the instruction that if suicide was a reasonably foreseeable consequence of the defendants' negligent conduct, legal causal connection between that conduct and the injury was not broken and was not an erroneous charge prejudicial to the defendants. Ga. Clinic, P.C. v. Stout, 323 Ga. App. 487, 747 S.E.2d 83 (2013).
Charge as to apportionment.
- In a personal injury case, the defendant's apportionment claim was an affirmative defense; thus, the defendant had the burden of showing by a preponderance of the evidence that the nonparty tractor-trailer driver was negligent and that the driver's negligence proximately caused all or some portion of damages to the plaintiff; thus, the trial court committed no error in charging the jury to that effect. Brown v. Tucker, 337 Ga. App. 704, 788 S.E.2d 810 (2016).
4. Harmless Error
Mere verbal inaccuracy not reversible error.
- When it appears that word complained of represents merely a verbal inaccuracy, and charge as a whole lays down principle of law involved correctly, case will not be reversed on this ground. Riviera Equip., Inc. v. Omega Equip. Corp., 155 Ga. App. 522, 271 S.E.2d 662 (1980).
Inaccuracies in charge which do not mislead or obscure meaning, do not require new trial. Johnson v. State, 148 Ga. App. 702, 252 S.E.2d 205 (1979).
Charging an entire statute when only part is applicable.
- Even though not every phrase and portion of a Code section may be applicable, it is generally held that a new trial will not be granted if court gives in charge an entire statute or Code provision when part thereof is applicable even though part may be inapplicable under facts in evidence. Bagley v. State, 153 Ga. App. 777, 266 S.E.2d 804 (1980).
Trial court's instruction of the jury on the entirety of O.C.G.A. § 16-6-4(c) when the aggravated child molestation charge was based on physical injury to a child was not a substantial error under O.C.G.A. § 5-5-24(c); the indictment was read to the jury, the indictment was sent with the jury for deliberations, and the jury was instructed that the state's burden was to prove every material allegation in the indictment and every essential element of each crime beyond a reasonable doubt. Anderson v. State, 282 Ga. App. 58, 637 S.E.2d 790 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Incorrect charge on damages when verdict is for proper amount.
- Though true measure of damages may not have been given in charge, no new trial is required if verdict does not exceed amount of damages which should have been found had charge been correct. Southern Concrete Prods. Co. v. Martin, 126 Ga. App. 534, 191 S.E.2d 314 (1972).
Erroneous charge on measure of damages as harmless error.
- In cases when plaintiff seeks damages, and jury fails to return verdict in the plaintiff's favor, failure of the court to charge on the measure of damages is harmless error when there has been a jury verdict finding no liability. Marshall v. Fulton Nat'l Bank, 155 Ga. App. 51, 270 S.E.2d 281 (1980).
If jury returns verdict in favor of defendant as to liability, any error in instruction as to damages is harmless. Garrison v. Rich's, 154 Ga. App. 663, 269 S.E.2d 513 (1980).
When only contested issues relate to liability of defendant and amount of damages inflicted, and verdict in favor of defendant is returned by jury, charge of court calculated to affect finding of jury on question of amount of damages only, and not calculated to affect finding upon question of defendant's liability or nonliability, will not require new trial whether erroneous or not. Don Howard's Music Mart, Inc. v. Southern Bell Tel. & Tel. Co., 154 Ga. App. 648, 269 S.E.2d 506 (1980).
Defendant who neither requested charge nor objected to charge, has waived defendant's rights and has no standing to complain on appeal. Atlanta & W.P.R.R. v. Armstrong, 138 Ga. App. 577, 227 S.E.2d 71 (1976).
Waiver of error by proceeding with closing argument.
- When court charges jury before closing arguments, counsel waives error by proceeding with closing argument. Evans v. Moore, 131 Ga. App. 169, 205 S.E.2d 507 (1974).
Failure to charge on certain issues not error absent written request or objection.
- Trial court does not commit error by failing to charge on certain issues when there was no written request to charge on issues and no objection was made to charge as given. Cochran v. Quinter, Inc., 156 Ga. App. 109, 274 S.E.2d 113 (1980).
Failure to give an unrequested charge on circumstantial and secondary evidence was not error when the state's case depended primarily on the victim's testimony which was not circumstantial, and the trial court gave an instruction regarding reliance on circumstantial evidence. Nobles v. State, 233 Ga. App. 63, 503 S.E.2d 321 (1998).
Harmless omission from instructions of some element will not be reviewed.
- Instructions fall under general rule that when no objection is made to mere omission to include some element not rising to the threshold of harmful error as a matter of law, enumerations of error will not be considered on appeal. Byrd v. State, 156 Ga. App. 522, 275 S.E.2d 108 (1980).
Failure to instruct jury to limit consideration of evidence to particular purpose.
- It is well recognized that when evidence is admitted for one purpose, it is not error for the court to fail to instruct the jury to limit the jury's consideration to purpose for which the evidence is admissible in absence of request to so instruct. Tankersley v. State, 155 Ga. App. 917, 273 S.E.2d 862 (1980).
Failure to charge relative to good character of accused.
- Proper instruction should be given in every case when the accused puts the accused's character in issue; but in absence of timely request, an omission to give specific charge on the subject will not require new trial. It is only in exceptional cases when the court fails to charge relatively to the good character of the accused that a new trial should be granted. Spear v. State, 230 Ga. 74, 195 S.E.2d 397 (1973).
Absent written request, failure to charge on question of character evidence is not error. Smith v. State, 153 Ga. App. 519, 265 S.E.2d 852 (1980).
Failure to charge on law of impeachment of witnesses not error when not requested. Butts v. Davis, 126 Ga. App. 311, 190 S.E.2d 595 (1972).
Charge on impeachment by proof of conviction was not reversible error even though the defendant had not placed the defendant's character in issue because of the overwhelming evidence of the defendant's guilt. Peterson v. State, 212 Ga. App. 147, 441 S.E.2d 481 (1994).
Charge on weight of opinion evidence is not required, absent timely written request. Burger v. State, 245 Ga. 458, 265 S.E.2d 796.
Failure to charge on theory not relied on as defense.
- When theory of accident is not relied on as a defense, failure to charge on this theory, in absence of timely written request, is not error. Morrow v. State, 155 Ga. App. 574, 271 S.E.2d 707 (1980).
Failure to charge on voluntary manslaughter.
- When party failed to present written request to charge voluntary manslaughter at or before close of evidence, trial court's failure to so charge does not constitute reversible error. Bouttry v. State, 242 Ga. 60, 247 S.E.2d 859 (1978).
Failure to charge on duty to retreat where defendant argues self-defense.
- Based on the overwhelming evidence of guilt of a charge of aggravated assault, the trial court's failure to sua sponte give a jury instruction on the duty to retreat was not harmful, and thus the issue was not reviewable under O.C.G.A. § 5-5-24; the only evidence that the defendant acted in self-defense was the defendant's own testimony and, as the jury saw a videotape of the altercation, the jury did not have to speculate on how the stabbing occurred. Buggle v. State, 299 Ga. App. 515, 683 S.E.2d 85 (2009).
Failure to charge on accident and justification.
- 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 them; 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).
Failure to charge knowledge of defendant prosecution for aggravated assault.
- In a prosecution for aggravated assault, it was harmless error for the court not to charge that the defendant had knowledge that the persons assaulted were police officers when the defendant testified that the defendant knew they were police officers and that the defendant called9-1-1 to summon the officers to the scene. Stevenson v. State, 234 Ga. App. 103, 506 S.E.2d 226 (1998).
In a prosecution for aggravated assault upon a police officer, failing to charge the jury expressly that an essential element of the offense is the defendant's knowledge that the victim was a police officer was harmless error because the defendant's testimony showed clearly that the defendant knew the man was a police officer. Priester v. State, 249 Ga. App. 594, 549 S.E.2d 429 (2001).
Charge on lesser crime than that included in indictment is discretionary.
- Trial judge may, of the judge's own volition and in the judge's discretion, charge on a lesser crime of that included in indictment or accusation. However, the judge's failure to do so, without written request by state or accused, is not error. Bouttry v. State, 242 Ga. 60, 247 S.E.2d 859 (1978).
Charging the wrong statute in a criminal action did not result in substantial harm when there was no reasonable probability that the defendant was convicted of committing the offense in a manner not charged in the indictment. Miller v. State, 240 Ga. App. 18, 522 S.E.2d 519 (1999).
Special instructions regarding legal terms and technical words.
- When party has requested no special instructions as to meaning of legal terms and technical words, this is not generally a ground for new trial. Deshazier v. State, 155 Ga. App. 526, 271 S.E.2d 664 (1980).
"Level of certainty" charge.
- There was no harmful error under O.C.G.A. § 5-5-24 in the giving of a "level of certainty" eyewitness identification testimony instruction; the identification of the defendant by two officers was highly reliable under the totality of factors mentioned in the instruction, and only one officer had been asked about the certainty of the officer's identification. Olivaria v. State, 286 Ga. App. 856, 650 S.E.2d 422 (2007).
Charge, in divorce, awarding custody when record establishes marriage is irretrievably broken.
- When court's charge to jury in divorce case included award of custody and record supports factual determination that marriage was irretrievably broken, charge does not constitute substantial error. Harper v. Harper, 233 Ga. 253, 210 S.E.2d 773 (1974).
Civil conspiracy charge not harmful as a matter of law.
- Trial court's instructing the jury on civil conspiracy was not harmful to the defendant as a matter of law because, to the extent that the plaintiff alleged that the defendant directly or indirectly through the defendant's doctors maliciously undertook actions aimed at destroying the plaintiff's medical practice, the plaintiff asserted a theory against the defendant that was cognizable regardless of the existence of a conspiracy. Alta Anesthesia Assocs. of Ga., P.C. v. Gibbons, 245 Ga. App. 79, 537 S.E.2d 388 (2000).
Instruction regarding sufficiency of evidence in civil matter.
- In an action against the Georgia Department of Transportation alleging negligent placement of safety devices at an intersection, the trial court erred by instructing the jury that other collision evidence alone was not sufficient to show notice of a dangerous condition, but the error was harmless. McCorkle v. DOT, 257 Ga. App. 397, 571 S.E.2d 160 (2002).
Charge must be prejudicial for reversal.
- Erroneous charge touching a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the record, does not require or demand a reversal. Hall v. State, 176 Ga. App. 498, 336 S.E.2d 604 (1985).
Trial court's failure to instruct jury without request on doctrine of comparative negligence did not constitute gross miscarriage of justice requiring a new trial. King v. Communications, Inc., 166 Ga. App. 35, 303 S.E.2d 143 (1983).
Misstatement of limitation period.
- Even though the trial court erred in charging the jury that the statute of limitations for incest is seven years, the error was harmless because the defendant's acts of incest occurred well within the applicable four-year limitation period. Wiser v. State, 242 Ga. App. 593, 530 S.E.2d 278 (2000).
Misstatement in jury charge harmless.
- In a nuisance suit brought by homeowners against a city, any error in a charge referring to "owner or occupier" rather than "owner and occupier" was harmless; the city had not excepted to the charge on this ground, and the city had not shown that there were any homeowners who were not both owners and occupants of their homes. City of Atlanta v. Broadnax, 285 Ga. App. 430, 646 S.E.2d 279 (2007), cert. denied, No. S07C1445, 2007 Ga. LEXIS 615, 648 (Ga. 2007), overruled on other grounds, Royal Capital Dev. LLC v. Md. Cas. Co., 291 Ga. 262, 728 S.E.2d 234 (2012).
Insurance coverage.
- Although failure to have proof of insurance coverage in violation of O.C.G.A. § 40-6-10(a)(1) and driving without liability insurance in violation of § 40-6-10(b) are separate offenses, reversal was not mandated despite the fact that the trial court incorrectly instructed the jury because trial counsel failed to object or raise exceptions to the jury instructions as required by O.C.G.A. § 5-5-24(c) and there was no finding that there was a substantial error which was harmful as a matter of law. Augustin v. State, 260 Ga. App. 631, 580 S.E.2d 640 (2003).
5. New Trials for Refusal of Requested Charges
Writing necessary.
- Request to charge, which is refused, must, to form basis of review, be in writing. Foster v. Ramsey, 102 Ga. App. 523, 116 S.E.2d 617 (1960) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
For refusal to justify new trial, request must be written and contain pertinent, legal charge.
- To make refusal to give request in charge ground for new trial, request must be a pertinent legal charge, and must be submitted in writing. Savannah, F. & W. Ry. v. Horn, 69 Ga. 759 (1882); Savannah & S. Ry. v. Davis, 28 Ga. App. 654, 112 S.E. 907 (1922) (decided under former Penal Code 1910).
Time of presentment must be alleged.
- Assignment of error will not be considered when time of presenting request is not alleged. Southern Ry. v. Williams, 19 Ga. App. 544, 91 S.E. 1001 (1917) (decided under former Penal Code 1910).
Must specify error.
- If charge is not erroneous for any reason assigned, a new trial will not be granted. Brown v. State, 126 Ga. 105, 54 S.E. 914 (1906); Jones v. State, 126 Ga. 538, 55 S.E. 171 (1906); Williams v. State, 124 Ga. 782, 53 S.E. 98 (1906).
Motion must distinctly point out portion of charge challenged.
- In order to be considered by appellate court, ground of motion for new trial assigning error upon charge of court must segregate from entire charge the part or parts thereof constituting alleged error. Rentz v. Hagan, 31 Ga. App. 729, 122 S.E. 247 (1924) (decided under former Penal Code 1910).
In a breach of contract and fraud action, although objections made at jury charge conferences do not preserve charging issues for appellate review, the appellate court still addressed the lessee's challenges because the appellate court was able to review the transcript of the charge conference, which transcript evidence demonstrated that the trial judge sufficiently understood the nature of the lessee's objections to enable the judge to rule intelligently on the specific point. Goody Prods. v. Dev. Auth. of Manchester, 320 Ga. App. 530, 740 S.E.2d 261 (2013).
When overwhelming evidence clearly establishes guilt of accused, erroneous charge will not work reversal. Bradford v. State, 69 Ga. App. 856, 26 S.E.2d 848 (1943) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
When guilt of accused is clearly established aliunde, error in admission of testimony or in charge of court fades into immateriality and does not demand reversal. Miller v. State, 69 Ga. App. 847, 26 S.E.2d 851 (1943) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).
New trial not granted where verdict is not affected by refusal to charge as requested. Georgia R.R. & Banking Co. v. Scott, 37 Ga. 94 (1867); Powers v. State, 44 Ga. 209 (1871).
6. New Trial for Erroneous Charges
New trial permitted when instructions are not authorized by evidence. Culberson v. Alabama Constr. Co., 127 Ga. 599, 56 S.E. 765, 9 L.R.A. (n.s.) 411, 9 Ann. Cas. 507 (1907).
New trial permitted when instructions erroneously state party's contentions. Wilson v. Wilson, 130 Ga. 677, 61 S.E. 530 (1908).
New trial warranted by omission to instruct as to form of verdict of acquittal. Nalley v. State, 11 Ga. App. 15, 74 S.E. 567 (1912) (decided under former Penal Code 1910).
New trial warranted on Georgia RICO claims due to improper jury charge on standard of proof.
- Trial court erred in a bifurcated suit asserting a claim of illegal insurance sales under the Georgia Racketeer Influenced and Corrupt Organizations Act (Georgia RICO), O.C.G.A. § 16-14-1 et seq., by instructing the jury that the suing passenger of a cab was required to prove the asserted Georgia RICO claims against two cab companies by clear and convincing evidence as the proper standard of proof to have been applied was a preponderance of the evidence. Am. Ass'n of Cab Cos. v. Parham, 291 Ga. App. 33, 661 S.E.2d 161 (2008), cert. denied, No. S08C1409, 2008 Ga. LEXIS 690, cert. granted, No. S08G1410, No. S08C1409, 2008 Ga. LEXIS cert. granted, No. S08G1410, 2008 Ga. LEXIS 728 (Ga. 2008).
Instructions applicable to matters wholly foreign to issue, calculated to mislead jury, demand new trial. Yopp v. State, 131 Ga. 593, 62 S.E. 1036 (1908).
When issue is murder or manslaughter, omitting charge regarding latter is error requiring new trial. Peterson v. State, 146 Ga. 6, 90 S.E. 282 (1916) (decided under former Penal Code 1910).
Failure to charge on circumstantial evidence requires new trial when guilt rests entirely upon circumstantial evidence. Kincaid v. State, 13 Ga. App. 683, 79 S.E. 770 (1913) (decided under former Penal Code 1910); Harris v. State, 18 Ga. App. 710, 90 S.E. 370 (1916) (decided under former Penal Code 1910).
In robbery prosecution, failure to charge regarding intent to steal is error requiring new trial. Blackshear v. State, 20 Ga. App. 87, 92 S.E. 554 (1912) (decided under former Penal Code 1910), Sledge v. State, 99 Ga. 684, 26 S.E. 756 (1896);.
Failure to charge as to presumption of innocence is error requiring new trial. Butts v. State, 13 Ga. App. 274, 79 S.E. 87 (1913) (decided under former Penal Code 1910), later appeal, 14 Ga. App. 821, 82 S.E. 375 (1914) (decided under former Penal Code 1910).
Improper charge on presumption of innocence.
- Habeas corpus relief in the form of a new trial was properly granted to an inmate from a malice murder conviction based on an erroneous instruction on the presumption of innocence in spite of a correct instruction on the presumption that was given during preliminary instructions to the jury prior to the presentation of any evidence; such preliminary instructions could not serve as a substitute for the complete jury instructions required by O.C.G.A. § 5-5-24(b) after closing arguments were completed, and the omission of comprehensive instructions that were relevant and necessary to weigh the evidence and enable the jury to discharge the jury's duty constituted plain error under O.C.G.A. § 5-5-24(c). Tillman v. Massey, 281 Ga. 291, 637 S.E.2d 720 (2006).
New trial required when charge intimates judge's opinion upon evidence. Morris v. State, 6 Ga. App. 395, 65 S.E. 58 (1909).
Charge concerning confessions when there is evidence only of incriminating admissions is error. Porter v. State, 11 Ga. App. 246, 74 S.E. 1099 (1912) (decided under former Penal Code 1910).
Instructions intimating opinion as to probative value of certain evidence are erroneous. Strickland v. State, 6 Ga. App. 536, 65 S.E. 300 (1909); Goolsby v. State, 148 Ga. 474, 97 S.E. 73 (1918) (decided under former Penal Code 1910).
Allen charge not fatally defective.
- Allen charge was not fatally defective because, although the Allen charge contained some inaccurate language, the fact that the jury spent less than an hour deliberating after the charge was given did not prove coercion; it was not an abuse of discretion to deny defendant's motion for a new trial as it was just as likely that the jury reached a verdict quickly after the Allen charge due to a fresh perspective after a night away from deliberations. Graham v. State, 273 Ga. App. 187, 614 S.E.2d 815 (2005).
DUI charge improper.
- Jury charge that a DUI defendant's refusal to submit to a blood alcohol test could create an inference that the test would show the presence of alcohol which impaired the driver's driving was plain error, requiring a new trial, because the charge shifted the burden of proof to the defendant, requiring the defendant to rebut the inference that the defendant was an impaired driver. Wagner v. State, 311 Ga. App. 589, 716 S.E.2d 633 (2011).
Giving of pattern jury instruction on comparative negligence not harmless error.
- Trial court erred in charging the jury with the pattern instruction on comparative negligence because the instruction had been superseded by O.C.G.A. § 15-12-33(a), as amended in the Tort Reform Act of 2005; a van driver preserved the objections to the erroneous jury instruction and verdict form, and given the possibility that the jury could have found negligence on the part of the car driver but failed to quantify that driver's negligence in precise terms and reduce the jury's award of damages accordingly, the errors were not harmless. Clark v. Rush, 312 Ga. App. 333, 718 S.E.2d 555 (2011).
Objections to Charge or Failure to Charge
1. In General
Purpose of subsection (a) is to afford trial court an opportunity to correct errors in instructions without necessity of appeal. Seagraves v. Abco Mfg. Co., 121 Ga. App. 224, 173 S.E.2d 416 (1970).
Obvious purpose of subsection (a) is to afford trial court opportunity to correct charge which has been given, and to consider grounds of objection at a time before jury has retired to consider the jury's verdict and at a time when corrections can be made in charge if, upon such consideration, the court deems correction proper. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).
One purpose of subsection (a) is to afford trial judge an opportunity to correct errors in instructions without necessity of appeal. Fleet Transp. Co. v. Cooper, 126 Ga. App. 360, 190 S.E.2d 629 (1972).
Subsection (a) seeks to eliminate sporting aspect of objection to charge.
- Statute will not allow counsel in civil case to gamble by refusing to object to possibly erroneous charge or omission in charge, hoping for a favorable verdict, and then relying upon the error to obtain new trial if verdict is unfavorable. Horton v. Ammons, 125 Ga. App. 69, 186 S.E.2d 469 (1971), aff'd sub nom. Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972); Christiansen v. Robertson, 237 Ga. 711, 229 S.E.2d 472 (1976).
Party cannot ignore during trial that which the party thinks to be error or injustice and take the party's chances on a favorable verdict and then complain later. Simmons v. Edge, 155 Ga. App. 6, 270 S.E.2d 457 (1980).
Duty on counsel.
- This section places the duty on counsel to exercise a high degree of clarity in objecting to charges. Stone v. Burell, 161 Ga. App. 369, 288 S.E.2d 636 (1982); Turner v. Taylor, 179 Ga. App. 574, 346 S.E.2d 920 (1986); Tice v. Cole, 246 Ga. App. 135, 537 S.E.2d 713 (2000).
Failure to except to charge constitutes waiver. Pierce v. Pierce, 241 Ga. 96, 243 S.E.2d 46 (1978).
When court in a criminal case inquires whether there is any objection to charge, and defendant's counsel raises none, appellant waives right to enumerate error by failing to respond to court's inquiry. White v. State, 243 Ga. 250, 253 S.E.2d 694 (1979).
Failure to except before verdict generally results in a waiver of any defects in the charge, the exception under subsection (c) of O.C.G.A. § 5-5-24 applying only when there has been a substantial error which was blatantly apparent and prejudicial, and which resulted in a gross miscarriage of justice. Hunter v. Batton, 160 Ga. App. 849, 288 S.E.2d 244 (1982); Bryson v. Button Gwinnett Sav. Bank, 205 Ga. App. 668, 423 S.E.2d 691 (1992).
Any rights available to criminal defendant under subsection (a) of O.C.G.A. § 5-5-24 are waived when defense counsel states counsel has no objections to charge. Burgess v. State, 162 Ga. App. 212, 290 S.E.2d 554 (1982).
When defense counsel neither objects nor reserves the right to later object, the defendant waives the right to raise the issue on appeal. Devoe v. State, 249 Ga. 499, 292 S.E.2d 72 (1982).
When the appellant fails to object to a particular charge at trial, appellant thereby waives appellate consideration of this issue. DOT v. 2.734 Acres of Land, 168 Ga. App. 541, 309 S.E.2d 816 (1983); Tyler v. Bennett, 215 Ga. App. 87, 449 S.E.2d 666 (1994).
In general, failure to object to the trial court's instruction to the jury before the jury returns the jury's verdict constitutes a waiver of the right to raise the issue on appeal. Henderson v. Glen Oak, Inc., 179 Ga. App. 380, 346 S.E.2d 842 (1986), aff'd, 256 Ga. 619, 351 S.E.2d 640 (1987).
Failure to object to a jury instruction that is allegedly confusing and prejudicial generally results in a waiver of any defects, except when the charge is substantially erroneous and harmful as a matter of law. Hunter v. Hardnett, 199 Ga. App. 443, 405 S.E.2d 286, cert. denied, 199 Ga. App. 906, 405 S.E.2d 286 (1991).
Failure to object to a jury instruction generally constitutes a waiver of any defects in the charge, absent a substantial error blatantly apparent and prejudicial, resulting in a gross miscarriage of justice, but even the review of a substantial error under O.C.G.A. § 5-5-24(c) is not available when the giving of an instruction, or the failure to give an instruction, is induced during trial by counsel for the complaining party or specifically acquiesced in by counsel. Queen v. Lambert, 259 Ga. App. 385, 577 S.E.2d 72 (2003).
Defendant waived appellate review of a jury charge because defendant did not object nor reserve objections to the instruction when the court asked for any objections to the jury charge; in fact, defendant made a specific request for and acquiesced in the contested charge. Courrier v. State, 270 Ga. App. 622, 607 S.E.2d 221 (2004).
In a nuisance suit wherein the plaintiff homeowners received a verdict in their favor as against the City of Atlanta with regard to recurrent flooding in a neighborhood, because the city failed to object in any manner to the jury instruction on damages, any alleged error was harmless since the city failed to make any exception to the instruction. City of Atlanta v. Broadnax, 285 Ga. App. 430, 646 S.E.2d 279 (2007), cert. denied, No. S07C1445, 2007 Ga. LEXIS 615, 648 (Ga. 2007), overruled on other grounds, Royal Capital Dev. LLC v. Md. Cas. Co., 291 Ga. 262, 728 S.E.2d 234 (2012).
Failure to request charge or object to omission distinguished from failure to object to charge.
- White v. State, 243 Ga. 250, 253 S.E.2d 694 (1979).
In order to avoid waiver, if trial court inquires if there are objections to charge, counsel must state objections or reserve right to object on motion for new trial or on appeal. Jackson v. State, 246 Ga. 459, 271 S.E.2d 855 (1980); Lewis v. State, 215 Ga. App. 161, 450 S.E.2d 448 (1994).
Reservation of right to object in motion for new trial prevents waiver.
- When trial court in a criminal case inquires whether there is objection and defendant's counsel states that counsel reserves the right to object in motion for new trial or appeal, there is no waiver. White v. State, 243 Ga. 250, 253 S.E.2d 694 (1979).
Waiver by acceptance of charge.
- Invoking the right to request certain instructions in writing, as authorized in subsection (b) of O.C.G.A. § 5-5-24 does not avoid the waiver which occurs when, after the whole charge is given, express acceptance of the charge as stated. Roura v. State, 214 Ga. App. 43, 447 S.E.2d 52 (1994).
Errors harmful as a matter of law.
- Appellate court was entitled to consider whether a substantial error in a jury charge was harmful as a matter of law, regardless of whether or not the defendant objected to the jury charge in the trial court. The trial court's failure to charge the jury on defendant's sole issue of self defense in the defendant's felony obstruction of an officer case involved substantial error that was harmful as a matter of law, even though the defendant did not object, as some evidence supported giving the instruction and the failure to give the instruction was the equivalent of directing a verdict against the defendant. Watts v. State, 259 Ga. App. 531, 578 S.E.2d 231 (2003).
Absent objection, erroneous instructions not reviewable unless constituting substantial error as a matter of law.
- Errors alleged to have been in charge but to which there was no exception as provided in subsections (a) and (b) will not generally be held harmful as a matter of law, and will not be considered unless it appears that gross injustice is about to result or has resulted, directly attributable to alleged errors. Barlow v. Rushin, 114 Ga. App. 304, 151 S.E.2d 199 (1966); Murray v. Richardson, 134 Ga. App. 676, 215 S.E.2d 715 (1975).
When party did not complain of instructions given jury before the jury returned the jury's verdict, and charges were not substantially in error so as to be harmful to the party as a matter of law, these alleged errors presented no question for review. Kirkman v. Miller, 116 Ga. App. 78, 156 S.E.2d 558 (1967).
When no exception was made to charge, or as to any failure of court to charge explanation thereof at any time before verdict, as is required by subsection (a), unless error appears that is harmful as a matter of law, the Court of Appeals is not authorized to consider enumeration. Holcomb v. Kirby, 117 Ga. App. 266, 160 S.E.2d 250 (1968).
In order to obtain review, objection to any charge or failure to charge should be made prior to the return of the jury's verdict, with the exception that when substantial error is made in the charge, the error will be reviewed by appellate courts without such objection. Dixon v. State, 224 Ga. 636, 163 S.E.2d 737 (1968).
When no objection is made before the verdict, error claimed on appeal will not be reviewed unless the error is deemed to be substantial and error as a matter of law under subsection (c). Bailey v. Todd, 126 Ga. App. 731, 191 S.E.2d 547 (1972), cert. denied, 409 U.S. 1113, 93 S. Ct. 927, 34 L. Ed. 2d 696 (1973).
When record discloses that no objection was made at trial to any part of the court's charge, there must have been substantial error in the charge which was harmful as a matter of law in order for the appellate court to consider and review the charge. Parks v. State, 230 Ga. 157, 195 S.E.2d 911 (1973).
Complaint concerning a charge to jury is barred when no objection is made at trial, unless the appellate court should find that the charge was harmful as a matter of law, i.e., that the charge was blatantly prejudicial or resulted in a gross miscarriage of justice. Lavender v. State, 234 Ga. 608, 216 S.E.2d 855 (1975).
When appellant did not object to charge of trial court on measure of damages as required by this section and court did not commit substantial error in charge which was harmful as a matter of law, no question for review is presented by enumerations of error on those grounds. Wright v. Thompson, 236 Ga. 655, 225 S.E.2d 226 (1976).
Party in civil case cannot complain of giving or failure to give instruction to jury, unless the party objects thereto before the jury returns the jury's verdict, unless it appears that the error contended is blatantly apparent and prejudicial. Mathews v. Penley, 242 Ga. 192, 249 S.E.2d 552 (1978), cert. denied, 440 U.S. 924, 99 S. Ct. 1255, 59 L. Ed. 2d 478 (1979).
Unless alleged error in portion of court's charge is blatantly apparent and prejudicial, appellant may not complain of the charge for the first time on appeal. McDaniel v. Gysel, 155 Ga. App. 111, 270 S.E.2d 469 (1980).
When appellant made no objection to trial court's charge, even when asked specifically by court if the appellant had any question or additions to the charge, unless there is substantial error which is harmful as a matter of law, such acquiescence in given instruction is reason enough to find appellant's enumeration of error regarding the charge to be without merit. Johnson v. State, 156 Ga. App. 411, 274 S.E.2d 778 (1980), cert. denied, 451 U.S. 989, 101 S. Ct. 2327, 68 L. Ed. 2d 848 (1981).
Review of charge enumerated as error is restricted to ground of objection stated on trial. Palmer v. Stevens, 115 Ga. App. 398, 154 S.E.2d 803 (1967); City of Macon v. Smith, 117 Ga. App. 363, 160 S.E.2d 622 (1968); Goodyear Tire & Rubber Co. v. Johnson, 120 Ga. App. 395, 170 S.E.2d 869 (1969); Fidelity-Phenix Ins. Co. v. Mauldin, 123 Ga. App. 108, 179 S.E.2d 525 (1970).
Alleged error in damages instruction waived by failure to object.
- Failure to object that the trial court erred by charging the jury on damages pursuant to O.C.G.A. §§ 51-12-5 and51-12-6 before the jury returned the jury's verdict in an action for wrongful dispossession, trespass, conversion, and theft constituted a waiver of the right to raise the issue on appeal, and there was no substantial error which would require review under the exception set forth in subsection (c) of O.C.G.A. § 5-5-24. Sanders v. Hughes, 183 Ga. App. 601, 359 S.E.2d 396, cert. denied, 183 Ga. App. 907, 359 S.E.2d 396 (1987).
No waiver in absence of request for objections.
- When counsel is never asked if counsel has any objection to a charge as given, counsel's right to relief under O.C.G.A. § 5-5-24 is not waived. Brady v. State, 169 Ga. App. 316, 312 S.E.2d 632 (1983).
Objections waived when counsel states counsel has no exceptions.
- Defense counsel waives objections when counsel states, in response to the trial court's query, that counsel has no exceptions to a charge as given. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983), aff'd, 252 Ga. 133, 311 S.E.2d 821 (1984); Mantooth v. State, 197 Ga. App. 797, 399 S.E.2d 505 (1990), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).
When at the close of the trial court's charge, the defendant's trial counsel states counsel has no exceptions to the charge, this constitutes a waiver. Hunt v. State, 157 Ga. App. 407, 278 S.E.2d 61 (1981); Bryant v. State, 256 Ga. 273, 347 S.E.2d 567 (1986).
When the trial court specifically asked for exceptions to the charge and defense counsel neither objected nor reserved exceptions for post-conviction review, defendant's claims of error regarding the jury charge were thus waived. Leggon v. State, 249 Ga. App. 467, 549 S.E.2d 137 (2001).
Grounds enumerated as error but not raised during trial may not be raised for the first time on appeal. Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8 (1981).
Variance between objection and error enumerated on appeal.
- When the objection made at trial dealt only with the time when the decision was made known to counsel as to what the court would charge, that objection was not the error enumerated on appeal, when the enumerated error related to the "substance" of the charges not being made known to counsel. Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8 (1981).
Form of objection unimportant.
- It is not important in what format an allegation is cast so long as it is clear to the court what the specific error alleged is so that the court may have opportunity to correct the error. Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8 (1981).
Failure to object to charge at time of trial precludes alleging error on that ground. Foster v. Harmon, 145 Ga. App. 413, 243 S.E.2d 659 (1978).
When at trial, plaintiff fails to make objection on ground enumerated as error, such enumeration presents nothing for court's consideration. Moon v. Combs, 116 Ga. App. 144, 156 S.E.2d 543 (1967).
When no objections were made to the failure to give requested charges, those objections cannot be considered on appeal. Nolen v. Murray Indus., Inc., 165 Ga. App. 785, 302 S.E.2d 689 (1983).
When the appellant did not raise an objection to the charge on avoidance in the court below prior to the return of the verdict, the objection cannot be raised for the first time on appeal. Lloyd v. Stone Mt. Mem. Ass'n, 165 Ga. App. 679, 302 S.E.2d 602 (1983).
Failure to object to any particular charge at trial waives appellate review of the charge. Kellett v. Department of Transp., 174 Ga. App. 214, 329 S.E.2d 514 (1985).
When the plaintiff challenges the trial court's "failure" to "caution" the jury about improper language contained in an order, but no cautionary instructions were requested at the time the evidence was admitted, no exceptions were taken to the court's charge, and no requests for instructions on this issue were submitted by the plaintiff, in view of the plaintiff's failure to except to the charge or present to the court the charge requested, this enumeration is without merit. Eiberger v. West, 165 Ga. App. 559, 301 S.E.2d 914 (1983).
When the appellant enumerates as error the failure of the trial court to give requested charges on a defense to a criminal count, but it appears that, although given the opportunity to do so in the trial court, the appellant neither raised any objection to the charge, nor reserved the right to except to the trial court's charge at a later time, counsel waives counsel's right to assert error. Bivins v. State, 166 Ga. App. 580, 305 S.E.2d 29 (1983).
When a party fails to object to a charge at trial, the party's contention thereto as to trial error is without merit. Hudson Properties, Inc. v. Citizens & S. Nat'l Bank, 168 Ga. App. 331, 308 S.E.2d 708 (1983).
There is no difference between cases when counsel acquiesced in the giving of a charge and cases when counsel acquiesced in the failure to give a particular charge. If counsel expressly acquiesced in a jury charge as given, any objection to either the inclusion or the omission of a particular charge was waived. Bell v. Samaritano, 196 Ga. App. 612, 396 S.E.2d 520 (1990), aff'd, 260 Ga. 768, 400 S.E.2d 13 (1991).
In a personal injury action, when there was no objection to a charge respecting proximate cause on any occasion, any error was induced by the plaintiff, and precludes the plaintiff from maintaining the issue on appeal. Moore v. Sinclair, 196 Ga. App. 667, 396 S.E.2d 557 (1990).
Building purchaser's claim that the trial court erred by not giving a jury instruction that an incidental breach of a contract did not warrant rescission was deemed waived pursuant to O.C.G.A. § 5-5-24(a) and (c) after the purchaser failed to object to the failure to give the charge at the trial court level, and the purchaser did not show that it was a substantial error that was so harmful that it was within the exception to making an objection; the record revealed that the seller had insisted that the purchaser provide workers' compensation prior to beginning a salvage operation and when the purchaser did not, the seller barred the purchaser's workers from further work, which was a valid act based on the parties' agreement and the substantial nature of the compensation condition to the contract. Lawrence v. Bland, 259 Ga. App. 366, 577 S.E.2d 64 (2003).
When partnership failed to object to the trial court's charge instructing the jury on a cause of action for an accounting before the return of the jury's verdict, the claim of error was waived on appeal. Singleton v. Terry, 262 Ga. App. 151, 584 S.E.2d 613 (2003).
In a will dispute, because the appellants had not objected during the trial to the content of a jury charge, the trial court's conversation with the jury during a charge, or to an expert's opinion, these issues were not preserved for appellate review. Lillard v. Owens, 281 Ga. 619, 641 S.E.2d 511 (2007).
Any challenge to the jury instructions was waived for purposes of appellate review because trial counsel failed to object at trial to any portion of the jury instructions or to reserve the right to object later. Loadholt v. State, 286 Ga. 402, 687 S.E.2d 824 (2010).
No review absent proper objection.
- Absent proper objection, Georgia appeals court will not review claim of error. Pittman v. Peebles, 148 Ga. App. 64, 251 S.E.2d 30 (1978).
When party fails to object to jury charge at time of trial the party is precluded from alleging error on appeal as to that ground. City Express Serv., Inc. v. Rich's, Inc., 148 Ga. App. 123, 250 S.E.2d 867 (1978).
When requirements of section have not been met, alleged errors present no question for review. Vogt v. Rice, 114 Ga. App. 251, 150 S.E.2d 691 (1966).
When counsel for appellant fails to comply with subsections (a) and (b) by not filing any written requests to charge, and in failing to give judge opportunity to correct erroneous instructions the judge may have given in the charge, enumerations of error based on certain erroneous instructions will not be considered. Georgia Power Co. v. Slappey, 121 Ga. App. 534, 174 S.E.2d 361 (1970).
Objections to charge of court are not required in criminal cases. Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978).
Subsection (a) of this section does not apply to criminal cases. Griffin v. State, 133 Ga. App. 508, 211 S.E.2d 382 (1974).
Appellant in criminal case may appeal and enumerate error on an erroneous charge or on erroneous failure to charge without first raising the issue in trial court. Gaither v. State, 234 Ga. 465, 216 S.E.2d 324 (1975).
There is no requirement to enter objection to erroneous criminal charge given unless the trial court specifically requires the defendant to enter objections prior to the return of the verdict or reserve the right to make such an objection. Gaines v. State, 177 Ga. App. 795, 341 S.E.2d 252 (1986).
Objections to pre-evidentiary statement.
- Reservation of objections to the main charge does not encompass objections to the pre-evidentiary statement since, while O.C.G.A. § 5-5-24 relieves defendant of the responsibility of objecting to jury charges at the time of trial and allows reservation of objections for a motion for new trial or appeal, it only concerns the charge given the jury at the end of the case. Malone v. State, 219 Ga. App. 728, 466 S.E.2d 645 (1995).
When an omission to charge is involved, there is a requirement to request a charge and/or object to the charge's omission or suffer a waiver. Gaines v. State, 177 Ga. App. 795, 341 S.E.2d 252 (1986).
Defendant's objections to charge on attorney fees are waived by failure to make objections at trial. Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468, 287 S.E.2d 257 (1981).
Trial court's failure to charge the jury that the jurors were not required to accept expert testimony offered by the plaintiffs to establish attorney fees cannot be asserted as error in absence of a timely written request for such charge. Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468, 287 S.E.2d 257 (1981).
Judge's failure to inquire as to objection.
- Waiver of rights under O.C.G.A. § 5-5-24 did not occur when the judge failed to inquire as to objection. Collins v. State, 176 Ga. App. 634, 337 S.E.2d 415 (1985).
Failure to charge one final time.
- Court's failure to charge one final time was not harmful and erroneous as a matter of law when several times during the trial the court charged the substance of O.C.G.A. § 5-5-24. Yeargin v. State, 164 Ga. App. 835, 298 S.E.2d 606 (1982). But see Hanifa v. State, 269 Ga. 797, 505 S.E.2d 731 (1998).
Failure to answer jury question.
- Trial court's failure to answer or respond to a deliberating jury's question on a jury charge cannot be challenged in a motion for a judgment notwithstanding the verdict when no objection to the court's failure to instruct the jury was made prior to the acceptance of the verdict. Parks v. Consolidated Freightways, 187 Ga. App. 576, 370 S.E.2d 827 (1988).
Trial court did not abuse the court's discretion in charging the jury on the definitions of a firearm and a weapon in response to the jury's question regarding the offense of hijacking a motor vehicle because those terms were included within the definition of hijacking a motor vehicle. Smith v. State, 304 Ga. App. 708, 699 S.E.2d 742 (2010), overruled on other grounds, Reed v. State, 291 Ga. 10, 727 S.E.2d 112 (2012).
Absence of the trial judge from the courtroom while the parties placed the party's objections on the record defeated a primary purpose of the requirement which is to ensure that the judge is afforded an opportunity to determine if a charging error in fact has occurred and to correct any error in the instructions prior to the verdict so that the necessity of an appeal will be obviated; the purpose is not simply to "perfect the record" for appeal. Crotts Enters., Inc. v. John Payne Co., 219 Ga. App. 173, 464 S.E.2d 844 (1995).
Failure to object to charge in bifurcated trial.
- Although the defendant failed to object to the trial court's practice in the second phase of a bifurcated trial and failed to request that the trial court repeat the court's instructions on reasonable doubt, presumption of evidence, and other general principles of law that the trial court had charged at the end of the first phase of the trial, the trial court erred in failing to give those instructions, which protect a defendant's constitutional rights; however, the error was harmless as the jury received the trial court's full instructions after arguments in the first phase of the trial and then, only three hours later, the jury began deliberations in the second phase of the trial. McKenye v. State, 247 Ga. App. 536, 544 S.E.2d 490 (2001), overruled on other grounds, Wallace v. State, 879 Ga. 275, 572 S.E.2d 579 (2002).
Preservation for review.
- When a party failed to ask to reargue the facts in light of an instruction, any error attributable to the court's having surprised counsel with an instruction that counsel believed had been withdrawn was not preserved for appellate review; as counsel had excepted to the instruction on the record before the jury returned the jury's verdict, however, the appropriateness of the instruction itself had been preserved for review. White v. Scott, 284 Ga. App. 87, 643 S.E.2d 356 (2007).
2. Time for Objection
Duty to make timely objection.
- O.C.G.A. § 5-5-24 does not relieve the criminal defendant of the obligation to make timely objection throughout the trial. This obligation is essential to the court's trying the case with as few errors as possible. Foshee v. State, 256 Ga. 555, 350 S.E.2d 416 (1986).
In a criminal case, defense counsel is not required to object immediately to the charge but may reserve the right to object on appeal. Sweat v. State, 173 Ga. App. 441, 326 S.E.2d 809 (1985).
Objection made after the charge and in response to the trial court's inquiry concerning exceptions to the court's instructions is timely, whether or not that objection was raised during a previous charge conference. Brown v. Sims, 174 Ga. App. 243, 329 S.E.2d 523, cert. vacated, 254 Ga. 538, 333 S.E.2d 371 (1985).
Objection to be made before jury returns verdict.
- Objections to trial judge's charge should be made before the jury returns the verdict. Gaines v. City of Gainesville, 115 Ga. App. 220, 154 S.E.2d 280 (1967).
O.C.G.A. § 5-5-24 prohibits a party from complaining of the giving or failing to give jury instructions unless the party objects before the jury returns the jury's verdict, except when there has been a substantial error in the charge which was harmful as a matter of law. DOT v. Old Nat'l Inn, Inc., 179 Ga. App. 158, 345 S.E.2d 853, cert. vacated, 256 Ga. 315, 349 S.E.2d 748 (1986); Arvida/JMB Partners v. Hadaway, 227 Ga. App. 335, 489 S.E.2d 125 (1997).
Section requires making of objections before the jury returns the jury's verdict, not before the jury retires to deliberate. Bruce v. Calhoun First Nat'l Bank, 134 Ga. App. 790, 216 S.E.2d 622 (1975).
When objections to the court's instructions are not made before jury returns the verdict as required by this section, the objections are not considered. Callaway v. Atlantic & Pac. Tea Co., 115 Ga. App. 769, 156 S.E.2d 174 (1967).
When record does not reflect that the defendant made any objection or exception to instructions given the jury before returning the jury's verdict as required by this section, nothing is presented for consideration by pertinent enumerations of error. John L. Hutcheson Mem. Tri-County Hosp. v. Oliver, 120 Ga. App. 547, 171 S.E.2d 649 (1969).
Exceptions to charge not made at time required by subsection (a) raise no question for determination on appeal. Stubbs v. Daughtry, 115 Ga. App. 22, 153 S.E.2d 633 (1967).
Plaintiff waived objection to the charge to the jury on breach of contract or fraud because the plaintiff failed to except to the charge before the verdict. Smithson v. Parker, 242 Ga. App. 133, 528 S.E.2d 886 (2000).
Doctor and doctor's employer timely objected to the trial court giving a jury charge that was erroneous because the court instructed the jury on the loss of past and future wages as an element of damages and gave the jury specific guidelines on calculating such damages even though the patient disclaimed such damages and presented no evidence on those elements of damages as their objection which was lodged before the jury returned the jury's verdict was timely under Georgia statutory law. Schriever v. Maddox, 259 Ga. App. 558, 578 S.E.2d 210 (2003).
In a suit by homeowners for breach of an exclusive listing contract, when the homeowner's claimed on appeal that the trial court did not properly instruct the jury on the issue of attorney fees, to the extent that the homeowners did not raise this objection in the trial court, their objection was waived, under O.C.G.A. § 5-5-24(a). West v. Austin, 274 Ga. App. 729, 618 S.E.2d 662 (2005).
Failure to except before verdict generally results in waiver of any defects in charge. Bryant v. Housing Auth., 121 Ga. App. 32, 172 S.E.2d 439 (1970).
Party may not complain of the giving or failure to give an instruction to the jury unless the party objects to the instruction before the jury returns the jury's verdict, stating distinctly the party's objection and the grounds of the party's objection; failure to do so generally results in a waiver of any defects in the charge. Little v. Little, 173 Ga. App. 116, 325 S.E.2d 624 (1984).
Individual waived any error in charging the jury on O.C.G.A. § 53-4-30 as the individual failed to object when the charge was given and there was no error in giving the instruction within the meaning of O.C.G.A. § 5-5-24(c). Jackson v. Neese, 276 Ga. App. 724, 624 S.E.2d 139 (2005).
3. Form and Content of Objection
Formalistic, technically perfect objection not required.
- The only requirement is that grounds of objection be stated distinctly enough for a reasonable trial judge to understand the objection's nature, enabling the judge to rule intelligently on the specific point. Horton v. Ammons, 125 Ga. App. 69, 186 S.E.2d 469 (1971), aff'd sub nom. Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972); Christiansen v. Robertson, 237 Ga. 711, 229 S.E.2d 472 (1976); DOT v. Old Nat'l Inn, Inc., 179 Ga. App. 158, 345 S.E.2d 853, cert. vacated, 256 Ga. 315, 349 S.E.2d 748 (1986).
Record should contain reasons for requested charge.
- Grounds of objection, i.e. the reasons urged for the requested charge, should be placed somewhere on the record, although all that is needed after the charge is a perfunctory objection identifying the omitted requested charge; and while the record need not be made with any particular formality, enough should appear so that the reviewing court can ascertain the grounds urged below. Golden Peanut Co. v. Bass, 249 Ga. App. 224, 547 S.E.2d 637 (2001), aff'd, 275 Ga. 145, 563 S.E.2d 116 (2002), cert. denied, 537 U.S. 886, 123 S. Ct. 32, 154 L. Ed. 2d 146 (2002).
Objections should be sufficiently specific for trial court to identify precise basis. Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8 (1981).
Objection must be sufficiently specific in order that the alleged error can be reasonably understood and addressed by the trial court. McGaha v. Kwon, 161 Ga. App. 216, 288 S.E.2d 289 (1982); Smaha v. Moore, 193 Ga. App. 23, 387 S.E.2d 13 (1989).
When at the conclusion of the charge conference, plaintiff simply restated the plaintiff's requested charge and asserted "[w]e ask that that should have been given, and we think it's proper....We think that the charge was an accurate statement of the law and that it applies in this case," the objection failed to meet the requirements of O.C.G.A. § 5-5-24. James v. Tyler, 215 Ga. App. 479, 451 S.E.2d 506 (1994).
Objection stating that "I object to every charge that I tendered for you to consider that you didn't give" was insufficient. Evans Toyota, Inc. v. Cronic, 233 Ga. App. 318, 503 S.E.2d 358 (1998).
Objection to the failure to give a charge was insufficient when the objection consisted of simply listing the charge not given, without any statement of grounds. Mays v. Farah U.S.A., Inc., 236 Ga. App. 1, 510 S.E.2d 868 (1999); Adams v. MARTA, 246 Ga. App. 698, 542 S.E.2d 130 (2000).
Plaintiffs in a personal injury case had preserved plaintiffs' objection to a jury recharge for review when plaintiffs' counsel objected on the grounds that the recharge was confusing, misleading, and contrary to the law, and the plaintiffs were not required to submit an alternate charge; the plaintiffs' objection clearly identified the paragraph of the recharge to which the plaintiffs were excepting and specified that the recharge was being challenged because the recharge was contrary to Georgia law, and that was all the law required to preserve an objection for appeal. Pearson v. Tippmann Pneumatics, Inc., 281 Ga. 740, 642 S.E.2d 691 (2007).
Appellate court erred by concluding that appellants failed to preserve an objection to a jury instruction for appeal. The appellants satisfied the specificity requirements of O.C.G.A. § 5-5-24(a) by distinctly stating the appellant's objection at the charge conference and by excepting to the charge as given at trial. McDowell v. Hartzog, 292 Ga. 300, 736 S.E.2d 395 (2013).
Rationale underlying requirement that objection be sufficiently specific, is to ensure that the trial judge is afforded an opportunity to correct any error in instructions prior to the verdict so that the necessity of appeal will be obviated. Hilliard v. Canton Whsle. Co., 151 Ga. App. 184, 259 S.E.2d 182 (1979).
Objection must be written, state grounds, and be made before jury returns verdict.
- Appellant must make proper objection to charge as given or to a request refused and state the grounds therefor before the jury returns the jury's verdict. Wright v. Dilbeck, 122 Ga. App. 214, 176 S.E.2d 715 (1970). But see CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 9 F. Supp. 2d 1374 (N.D. Ga. 1998), aff'd, 182 F.3d 788 (11th Cir. 1999).
When an appellant did not state distinctly the matter to which the appellant objected after the jury had been charged, and the grounds of the objection, there was nothing for the court to review. Alpha Beta Dickerson Southeastern, Inc. v. White Co., 235 Ga. App. 273, 509 S.E.2d 351 (1998).
Writing required.
- When defendant's counsel only orally requested a jury charge on reckless conduct as a lesser-included offense of aggravated assault, the charge request was properly denied because under O.C.G.A. § 5-5-24(b) the request was required to have been made in writing. Shinholster v. State, 262 Ga. App. 802, 586 S.E.2d 708 (2003).
Objection must fully apprise court of error committed and correction needed to cure error. Wright v. Dilbeck, 122 Ga. App. 214, 176 S.E.2d 715 (1970). But see CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 9 F. Supp. 2d 1374 (N.D. Ga. 1998), aff'd, 182 F.3d 788 (11th Cir. 1999).
Counsel is not required to suggest correct instruction in place of that objected to; statutory requirement is only that counsel shall state distinctly the matter to which counsel objects and the ground of counsel's objection. A-1 Bonding Serv., Inc. v. Hunter, 125 Ga. App. 173, 186 S.E.2d 566 (1971), aff'd, 229 Ga. 104, 189 S.E.2d 392 (1972).
Section requires statement of ground of objection or exception. Bailey v. Todd, 126 Ga. App. 731, 191 S.E.2d 547 (1972), cert. denied, 409 S.E. 1113, 93 S. Ct. 927, 34 L. Ed. 2d 696 (1973); Christiansen v. Robertson, 139 Ga. App. 423, 228 S.E.2d 350, rev'd on other grounds, 140 Ga. App. 725, 231 S.E.2d 828 (1976).
Appellant must make proper objection to a charge as given or to a request refused and state grounds therefor. Fidelity-Phenix Ins. Co. v. Mauldin, 123 Ga. App. 108, 179 S.E.2d 525 (1970).
Objection to charge without stating grounds is insufficient to raise reviewable question in appeals court. Christiansen v. Robertson, 140 Ga. App. 725, 231 S.E.2d 828 (1976).
Objection must distinctly point out portion of charge challenged.
- To be reviewable, objection to a charge must be unmistakable in its purport in directing attention of the trial court to the claimed error and must distinctly point out the portion of the charge challenged. Black v. Aultman, 120 Ga. App. 826, 172 S.E.2d 336 (1969); Wright v. Dilbeck, 122 Ga. App. 214, 176 S.E.2d 715 (1970). But see CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 9 F. Supp. 2d 1374 (N.D. Ga. 1998), aff'd, 182 F.3d 788 (11th Cir. 1999).
Failure to specify portion of charge objected to.
- When the trial court asked for objections to the jury charge, the defendant stated some objections but did not mention the portion of the charge to which the defendant objected on appeal, and did not reserve the right to object in a motion for new trial or an appeal, thereby waiving the defendant's right to assert error on appeal, the Court of Appeals reviewed the charge but found that the charge was not harmful as a matter of law. Lancaster v. State, 190 Ga. App. 505, 379 S.E.2d 786 (1989).
Objection which identifies charge objected to but states no ground.
- When objections to charge, while sufficient to identify charge objected to, state no grounds of objections, the objections are insufficient to meet the requirements of this section. Noble v. Kerr, 123 Ga. App. 319, 180 S.E.2d 601 (1971).
Cryptic statement, "objection," is entirely too vague and indefinite for decision by the trial court or by the appellate court. Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8 (1981).
Enumeration of error or brief should refer to part of record when objection appears.
- Enumeration of error or brief of counsel should refer to that part of record when objection to charge as given appears, and simple statement that counsel objects to refusal to give request is insufficient objection to charge. Johnson v. Myers, 118 Ga. App. 773, 165 S.E.2d 739 (1968).
O.C.G.A. § 5-5-24 is violated when appellant's enumerations of error complain of the trial court's instructions to the jury and the purported charges are set out but there is no reference to the location in the transcript and no mention of any objection made or where the objectionable material might be found. Sanders v. Bowen, 196 Ga. App. 644, 396 S.E.2d 908 (1990).
Items which grounds of error must clearly indicate.
- Grounds of error urged must be stated with sufficient particularity to leave no doubt as to portion of charge challenged or as to what the specific ground of challenge is and the correction needed to cure the error. Black v. Aultman, 120 Ga. App. 826, 172 S.E.2d 336 (1969); Stone v. Burell, 161 Ga. App. 369, 288 S.E.2d 636 (1982).
Inadequate objection to jury charge.
- Counsel's objection to a jury charge prior to the charge and then counsel's noting that counsel had excepted to the charge after the charge was given was an inadequate objection to the charge as given, pursuant to O.C.G.A. § 5-5-24(a), and did not preserve the alleged error for appeal. McDowell v. Hartzog, 312 Ga. App. 162, 718 S.E.2d 20 (2011).
Record must indicate objection was made prior to verdict and what objection was.
- No questions are raised on appeal as to portions of charge when there is no reference in enumerations or in brief as to portions of record indicating that objections were made prior to the verdict and what the objections may have been. Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 164 S.E.2d 318 (1968).
Appellant who enumerated as error the court's charges to the jury on comparative negligence and backing but who submitted the record on appeal containing only portions of the trial transcript and did not show that objections were made to the charges did not merit a new trial. Beckford v. Riley, 206 Ga. App. 130, 424 S.E.2d 381 (1992).
Preservation of issue as to correctness of charge by oral objection.
- While subsection (b) requires that requests for charge be submitted in writing, counsel in criminal case may preserve issue as to correctness of given charge by oral objection, for present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on giving of or failure to give instructions to the jury. Reed v. State, 130 Ga. App. 659, 204 S.E.2d 335 (1974).
4. Application
Informal objection is sufficient when issue is important and the trial judge understands objection.
- Where issue is important and trial court undoubtedly understood what counsel was objecting to and why counsel was objecting, an objection without formality is sufficient for consideration on appeal. Morey v. Dixie Lime & Stone Co., 134 Ga. App. 928, 216 S.E.2d 657 (1975).
General objection merely stating charge is irrelevant.
- General objection to trial judge that charge is irrelevant, without clearly specifying what is contended should have been charged, is insufficient to entitle objection to review. City of Atlanta v. Layton, 123 Ga. App. 432, 181 S.E.2d 313 (1971).
Mere general exception to charge or portion of charge is insufficient to raise issue. Bailey v. Todd, 126 Ga. App. 731, 191 S.E.2d 547 (1972), cert. denied, 409 U.S. 1113, 93 S. Ct. 927, 34 L. Ed. 2d 696 (1973).
General objection to court's charge which points out no specific defect is insufficient; objection must be sufficiently specific to bring into focus the precise nature of the alleged error so that it can be reasonably understood by the trial court. Royal Frozen Foods Co. v. Garrett, 119 Ga. App. 424, 167 S.E.2d 400, rev'd on other grounds sub nom. Garrett v. Royal Bros. Co., 225 Ga. 533, 170 S.E.2d 294 (1969).
Mere objection to giving of numbered request to charge, without stating grounds, does not satisfy section. Fidelity-Phenix Ins. Co. v. Mauldin, 123 Ga. App. 108, 179 S.E.2d 525 (1970); Moore v. Carrington, 155 Ga. App. 12, 270 S.E.2d 222 (1980).
Statement that litigant objects to certain requests to charge made by opposite party, designating the objections by number only and stating no grounds for the objections' disallowance, is not a compliance with requirement of subsection (a). MacDougald Constr. Co. v. State Hwy. Dep't, 125 Ga. App. 591, 188 S.E.2d 405 (1972).
Mere exception to failure to give numbered request to charge is insufficient as objection. Black v. Aultman, 120 Ga. App. 826, 172 S.E.2d 336 (1969); Reeves v. Morgan, 121 Ga. App. 481, 174 S.E.2d 460, rev'd on other grounds, 226 Ga. 697, 177 S.E.2d 68 (1970); Wright v. Dilbeck, 122 Ga. App. 214, 176 S.E.2d 715 (1970). But see CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 9 F. Supp. 2d 1374 (N.D. Ga. 1998), aff'd, 182 F.3d 788 (11th Cir. 1999); Louisville & N.R.R. v. Moreland, 122 Ga. App. 850, 178 S.E.2d 904 (1970).
Proximate cause.
- Court's failure to define the term "proximate cause" did not result in such a gross injustice as to raise a question of whether the defendant was denied a fair trial as the case did not involve evidence of multiple, intervening, or superseding causes or other factors that can render proximate cause an elusive concept when the jury was presented with evidence that the defendant negligently caused the automobile collision and that the plaintiff sustained back injuries. Gray v. Elias, 236 Ga. App. 799, 513 S.E.2d 539 (1999).
Trial court's charge containing the legal meaning of proximate cause and the charge's application to the facts was not error, even though the legal definition submitted by the plaintiff would have been elaborative and it would have been better had the court given this or some other definition of proximate cause. Hancock v. Bryan County Bd. of Educ., 240 Ga. App. 622, 522 S.E.2d 661 (1999).
Treatment of exception as abandoned.
- If exception made is not argued or insisted upon, it will be treated as abandoned. Fidelity-Phenix Ins. Co. v. Mauldin, 123 Ga. App. 108, 179 S.E.2d 525 (1970).
Asserted error on recharge is not for consideration and review absent objection before verdict. Lanier v. Zayre of Ga., Inc., 125 Ga. App. 739, 188 S.E.2d 885 (1972).
Grounds cannot be enlarged on appeal to include grounds not urged before trial court. Bailey v. Todd, 126 Ga. App. 731, 191 S.E.2d 547 (1972), cert. denied, 409 U.S. 1113, 93 S. Ct. 927, 34 L. Ed. 2d 696 (1973).
In a fatal collision between a freight train and a pickup truck, because the plaintiffs did not object to the trial court's charge on the sudden emergency defense on the ground that the defense was preempted by federal law or on the ground that the charge as given was an incomplete statement of the law, the trial court was never afforded an opportunity to rule on the specific objections raised by the plaintiffs on appeal, and the plaintiffs' challenge to the charge on those grounds was waived for purposes of appellate review. Smith v. Norfolk Southern Ry., 337 Ga. App. 604, 788 S.E.2d 508 (2016), cert. denied, No. S16C1837, 2017 Ga. LEXIS 119 (Ga. 2017).
Instruction which confused burden of coming forward and burden of proof.
- When the trial judge charged the jury that once the propounder established a prima facie case, then the burden of coming forward with evidence to meet prima facie case is on caveator instead of charging the jury that burden of proof shifted to caveator, error in charge was not so prejudicial to propounder as to be reviewable on appeal absent objection at trial. Johnson v. Dodgen, 244 Ga. 422, 260 S.E.2d 332 (1979).
Deficiencies in transcript, in and of themselves, do not justify reversal.
- In a civil case when the appellant has not shown that exceptions were made to a charge, and did not seek a hearing in the trial court to attempt to show that exceptions to charge were timely made, and all that is missing in the transcript is the charge of the court and exceptions made thereto, judgment will not be reversed because of deficiencies in the transcript. Albea v. Jackson, 236 Ga. 690, 225 S.E.2d 46 (1976).
Assertions of error concerning the damages portion of the court's charge which were not raised in the trial court cannot be considered on appeal. Thomason v. Harper, 162 Ga. App. 441, 289 S.E.2d 773 (1982).
Failure to object to reasonable doubt instruction.
- Even though a criminal defendant waived objections to a reasonable doubt instruction by failing to preserve the objections after direct inquiry by the court, the issue concerning the language of the instruction would be considered on appeal since proof beyond a reasonable doubt is the "true question" involved in a criminal trial. Tyson v. State, 217 Ga. App. 428, 457 S.E.2d 690 (1995); Loyd v. State, 222 Ga. App. 193, 474 S.E.2d 96 (1996).
Failure to charge on retraction waived when charge not submitted.
- When, in a defamation action, defendants failed to submit to the trial court a charge based on O.C.G.A. § 51-5-11(c), the defendants may not question on appeal the trial court's failure to give a charge on retraction, in view of subsection (b) of O.C.G.A. § 5-5-24. Williamson v. Lucas, 166 Ga. App. 403, 304 S.E.2d 412 (1983), aff'd, 171 Ga. App. 695, 320 S.E.2d 800 (1984).
Failure to request charge on forseeability.
- After the defendant failed to request a jury instruction on foreseeability in a criminal trial, the trial court's failure to give such an instruction was not clearly harmful and erroneous as a matter of law under O.C.G.A. § 5-5-24(b); the trial court gave the complete pattern instruction on felony murder, as well as all other theories applicable to the evidence. Shepherd v. State, 280 Ga. 245, 626 S.E.2d 96 (2006), overruled on other grounds by McElrath v. State, 2020 Ga. LEXIS 127 (Ga. 2020).
When request on burden of proof vague.
- When defendants never submitted a charge any more than vaguely outlining the burden of "clear and convincing" proof as to actual malice in an action for defamation of a public official, the defendants cannot complain on appeal of the trial court's failure to give a clearer charge on that issue, in view of subsection (b) of O.C.G.A. § 5-5-24. Williamson v. Lucas, 166 Ga. App. 403, 304 S.E.2d 412 (1983), aff'd, 171 Ga. App. 695, 320 S.E.2d 800 (1984).
Failure to object to charge in death penalty case not waiver.
- Failure to object to a sentencing phase jury charge in a death penalty case when the jury was not informed that a life sentence could be recommended in spite of the presence of aggravating circumstances did not preclude review of that charge in a habeas corpus proceeding. Stynchcombe v. Floyd, 252 Ga. 113, 311 S.E.2d 828 (1984).
No waiver when trial court incorporated by reference objections.
- When appellee made the threshold assertion that plaintiffs waived objection made during the charge conference by not excepting to the charge after the jury was instructed, and when the nature of the objection raised here was not entirely the same as that made at the charge conference, the Court of Appeals addressed the merits, because the trial court stated after the jury charge that the judge incorporated by reference the conference objections and rulings, and after recharge again took blanket note of the previous "exceptions;" by the court's "incorporation" statement, made unsolicited at a time when an invitation to state exceptions should have been extended, the court implied that the court assumed the parties would raise exceptions similar to the objections voiced during the charge conference, and further that the court rejected the exceptions; thus, the court created an awkward situation for which the party was not penalized. Clemons v. Atlanta Neurological Inst., 192 Ga. App. 399, 384 S.E.2d 881 (1989).
Failure to object to charge on theory of accident.
- Court of Appeals was unable to reach the merits of the contention that the trial court erred in giving the defendant's request to charge on the theory of accident when the plaintiff lodged no objection whatsoever in this regard before the trial court. Turner v. Taylor, 179 Ga. App. 574, 346 S.E.2d 920 (1986).
Failure to object to absence of requested charges.
- When at the conclusion of the jury charge and following the court's inquiry whether or not there were objections to the charge, appellant made no objection to any absence of two of appellant's requested charges, appellant may not complain on appeal about their exclusion. Turner v. Taylor, 179 Ga. App. 574, 346 S.E.2d 920 (1986).
Because an appellant readily admitted that the appellant failed to request charges on circumstantial evidence and speculative damages and did not object to the charge given by the trial court, the appeals court refused to hold that the trial court's failure to give the charges, sua sponte, created such a gross injustice as to deprive the appellant of a fair trial. Cmty. Bank v. Handy Auto Parts, Inc., 270 Ga. App. 640, 607 S.E.2d 241 (2004).
Since defense counsel did not object to instructing the jury before closing arguments, no error was preserved for appeal. Bennett v. State, 279 Ga. App. 371, 631 S.E.2d 402 (2006).
Spouse in wrongful death complaint failed to preserve for appellate review the spouse's challenge to a trial court's failure to give an instruction to the jury as the spouse failed to object to the trial court's refusal to give the jury several instructions regarding how an employee's use of a cell phone related to determining whether the employee was acting within the scope of the employee's employment at a particular time. Wood v. B&S Enters., 314 Ga. App. 128, 723 S.E.2d 443 (2012).
Failure to object to charge at charge conference does not preclude a party from objecting to the charge when the charge is given. Koppar Corp. v. Robertson, 186 Ga. App. 856, 368 S.E.2d 807 (1988).
Failure to object to preliminary instructions.
- Defendant could not acquiesce in the trial court's preliminary statement and complain of the statement for the first time on appeal under O.C.G.A. § 5-5-24. The trial court's preliminary instruction properly informed the jury that under Ga. Const. 1983, Art. I, Sec. I, Para. XI(a): (1) the jury was absolutely and exclusively the judge of the facts in the case; (2) the jury was, in this sense only, the judge of the law; (3) it was the province of the court to construe the law and give the law in the charge; and (4) it was the province of the jury to take the law as given, apply the law to the facts as found by the jury, and bring in a general verdict. Whitehead v. State, 258 Ga. App. 271, 574 S.E.2d 351 (2002).
Failure to charge on necessity of corroboration with accomplice's testimony.
- When the state does not rely solely upon an accomplice's testimony to connect the defendant to the crime, no error occurs when the trial court fails to sua sponte charge the jury as to the necessity for corroboration. Palmer v. State, 286 Ga. App. 751, 650 S.E.2d 255 (2007), cert. denied, No. S07C1770, 2007 Ga. LEXIS 678 (Ga. 2007).
Failure to participate in proposed charge conference.
- O.C.G.A. § 5-5-24 does not apply to the defendant when the record demonstrates that the defendant's counsel refused to participate in a proposed charge conference and announced that counsel had no objection to the proposed charges. Teague v. York, 203 Ga. App. 24, 416 S.E.2d 356 (1992).
Although plaintiff patient argued that the trial court erred in injecting the phrase "reasonable degree of medical certainty" into the jury charge on the standard of proof for proximate cause of injury in the patient's medical malpractice suit, any claim of error regarding the instruction was waived because, after raising the issue in the trial court, the patient's counsel expressly acquiesced in the trial court's position that the offending language had been effectively stricken and was not before the jury; even the review of substantial error under O.C.G.A. § 5-5-24(c) is not available when the giving of an instruction is specifically acquiesced in by counsel. Mercker v. Abend, 260 Ga. App. 836, 581 S.E.2d 351 (2003).
Defendant was properly denied a new trial because the trial court did not err in failing to charge a jury on impeachment of a witness by a prior conviction of a crime of moral turpitude where defendant did not enter a written request for the charge but in fact expressly agreed that it was not needed and in light of the overwhelming evidence of defendant's guilt. Holt v. State, 260 Ga. App. 826, 581 S.E.2d 257 (2003).
Failure to object to failing to define clear and convincing evidence.
- Because an owner and its agent did not object to the trial court's failure to give a certain jury instruction, because their liability had already been established as a matter of law by way of their default, and because they failed to show harm resulting from the trial court's failure to define the clear and convincing evidence standard in O.C.G.A. § 51-12-5.1(b), they failed to preserved their claims on appeal in accordance with O.C.G.A. § 5-5-24(a). Waller v. Rymer, 293 Ga. App. 833, 668 S.E.2d 470 (2008).
Substantial Error as a Matter of Law
1. In General
Subsection (c) strictly construed.
- While notwithstanding the provisions of subsections (a) and (b), the court shall consider and review erroneous charges when there has been a substantial error in the charge which was harmful as a matter of law, whether objection was made at trial or not, this provision must be construed strictly or it will result in an emasculation of the preceding provisions in subsections (a) and (b). Nathan v. Duncan, 113 Ga. App. 630, 149 S.E.2d 383 (1966).
Subsection (c) must be construed strictly or it will result in emasculation of the preceding provisions in subsections (a) and (b). Widener v. Mitchell, 137 Ga. App. 730, 224 S.E.2d 868 (1976).
Instances falling within subsection (c) are rare.
- Instances when the charge will be found ground for reversal under subsection (c), when counsel has not taken exception, are likely to be very, very rare. Central of Ga. Ry. v. Luther, 128 Ga. App. 178, 196 S.E.2d 149 (1973).
Court should hesitate to exercise the rights under this provision unless it appears that a gross injustice is about to result or has resulted, directly attributable to the alleged error. Instances where the charge will be found ground for reversal are likely to be very, very rare. Seabolt v. Cheeseborough, 127 Ga. App. 254, 193 S.E.2d 238 (1972).
Appellant must have been deprived of fair trial.
- Allegedly erroneous instruction must raise a question as to whether the appellant has been deprived of a fair trial as a result of the challenged instruction in order to fall within subsection (c) of O.C.G.A. § 5-5-24. Nelson v. Miller, 169 Ga. App. 403, 312 S.E.2d 867 (1984); Henderson v. Glen Oak, Inc., 179 Ga. App. 380, 346 S.E.2d 842 (1986), aff'd, 256 Ga. 619, 351 S.E.2d 640 (1987).
Defendant not deprived of fair trial by erroneous jury charge. Swanson v. DOT, 200 Ga. App. 577, 409 S.E.2d 74, cert. denied, 200 Ga. App. 897, 409 S.E.2d 74 (1991).
Trial court did not commit harmful error under O.C.G.A. § 5-5-24(c) in failing to charge the jury that an engineering firm had the burden of proof as to the firms' affirmative defenses of contributory and comparative negligence; any error did not result in a gross injustice, such as to raise a question as to whether a developer was deprived of a fair trial. Prime Retail Dev., Inc. v. Marbury Eng'g Co., 270 Ga. App. 548, 608 S.E.2d 534 (2004).
To constitute harmful error within the meaning of subsection (c) of O.C.G.A. § 5-5-24, an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial. Hamrick v. Wood, 175 Ga. App. 67, 332 S.E.2d 367 (1985); Wisenbaker v. Warren, 196 Ga. App. 551, 396 S.E.2d 528 (1990); Greenhill v. State, 199 Ga. App. 218, 404 S.E.2d 577, cert. denied, 199 Ga. App. 906, 404 S.E.2d 557 (1991).
2. Application
Subsection (c) refers only to the failure to make an objection to the charge, and not to those instances when giving of an instruction, or failure to give an instruction, is induced by counsel for the complaining party during the course of trial, or specifically acquiesced in by counsel. Irvin v. Oliver, 223 Ga. 193, 154 S.E.2d 217 (1967).
Generally, if counsel fails to see error, it is not to be considered harmful.
- Generally, if counsel, who are skilled and trained in law and who have prepared and tried the case, fail to see error and enter exception as provided in subsections (a) and (b), it is not to be regarded as harmful. Central of Ga. Ry. v. Luther, 128 Ga. App. 178, 196 S.E.2d 149 (1973).
Failure to enumerate error.
- Even if the failure to give a charge on a defendant's burden to prove affirmative defenses, either generally or specifically directed at the affirmative defense of comparative negligence, amounted to a substantial error harmful as a matter of law under subsection (c) of O.C.G.A. § 5-5-24, since it was not enumerated as error on appeal, it could not be considered by the appellate court. Heath v. L.E. Schwartz & Son, 199 Ga. App. 452, 405 S.E.2d 290, cert. denied, 199 Ga. App. 906, 405 S.E.2d 290 (1991).
Types of erroneous charges that justify reversal although no objection made.
- Reversals by reason of erroneous jury charges to which no exceptions are taken are generally those in which: (1) there was an erroneous presentation of the sole issue for decision; or (2) of a kind which would have been likely to unduly influence the jury; or (3) blatantly prejudicial to the extent of raising a question as to whether losing party has thus been deprived of a fair trial; or (4) gross injustice resulted therefrom. Mack v. Barnes, 128 Ga. App. 328, 196 S.E.2d 684 (1973).
Trial court properly did not instruct the jury, sua sponte under O.C.G.A. § 5-5-24(c), on a claim of right defense under O.C.G.A. § 16-8-10 to theft by deception charges under O.C.G.A. § 16-8-3 as a sole defense as the defendant did not object to the instructions given, and a claim of right defense was not warranted as the sole defense as the defendant testified about the reasons defendant was prevented from completing the jobs, and that the defendant had composed a list with defendant's pastor of how much work was done on each job, and how much defendant owed the people. Stratacos v. State, 312 Ga. App. 783, 720 S.E.2d 256 (2011).
Test under subsection (c) is whether arguments urged against specific instructions show probable error and, if so, whether it is of a kind which would have been likely to influence the jury either to find against the defendant or to return a larger verdict than the jury might otherwise have done. Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 164 S.E.2d 318 (1968).
Interpretation of words "substantial error . . . harmful as a matter of law" should be construed as meaning blatantly apparent and prejudicial to extent that it raises question of whether losing party has, to some extent at least, been deprived of a fair trial because of it or a gross injustice is about to result or has resulted directly attributable to the alleged errors. Central of Ga. Ry. v. Luther, 128 Ga. App. 178, 196 S.E.2d 149 (1973).
Error contemplated by subsection (c) is not harmful unless a gross miscarriage of justice attributable to the error is about to result. Nathan v. Duncan, 113 Ga. App. 630, 149 S.E.2d 383 (1966); Hawkins v. State, 116 Ga. App. 448, 157 S.E.2d 800 (1967); Central of Ga. Ry. v. Luther, 128 Ga. App. 178, 196 S.E.2d 149 (1973); Widener v. Mitchell, 137 Ga. App. 730, 224 S.E.2d 868 (1976).
Subsection (c) is inapplicable unless it appears that error contended is blatantly apparent and prejudicial, and that gross miscarriage of justice attributable to the error is about to result. Metropolitan Transit Sys. v. Barnette, 115 Ga. App. 17, 153 S.E.2d 656 (1967); Bryant v. Housing Auth., 121 Ga. App. 32, 172 S.E.2d 439 (1970); Sullens v. Sullens, 236 Ga. 645, 224 S.E.2d 921 (1976); Peek v. Department of Transp., 139 Ga. App. 780, 229 S.E.2d 554 (1976); Sturdivant v. Polk, 140 Ga. App. 152, 230 S.E.2d 115 (1976); McGarr v. McGarr, 239 Ga. 640, 238 S.E.2d 427 (1977); Jefferson v. Johnson, 143 Ga. App. 879, 240 S.E.2d 234 (1977); Fowler v. Gorrell, 148 Ga. App. 573, 251 S.E.2d 819 (1978); Jim Walter Corp. v. Ward, 150 Ga. App. 484, 258 S.E.2d 159 (1979); Dehler v. Setliff, 153 Ga. App. 796, 266 S.E.2d 516 (1980); Mathews v. Taylor, 155 Ga. App. 2, 270 S.E.2d 247 (1980).
Under subsection (c), nothing is presented for consideration on appeal unless it appears that error contended is blatantly apparent and prejudicial. Foskey v. State, 116 Ga. App. 334, 157 S.E.2d 314 (1967).
Under subsection (c), the appellate court is empowered to review instructions which are substantially and harmfully erroneous as a matter of law, that is, error that is blatantly apparent and prejudicial to the extent that the error raises a question as to whether the losing party has to some extent at least been deprived of a fair trial because of the error. Hollywood Baptist Church v. State Hwy. Dep't, 114 Ga. App. 98, 150 S.E.2d 271 (1966); Simmons v. Edge, 155 Ga. App. 6, 270 S.E.2d 457 (1980).
Unless charge to which no objection is made is so blatantly prejudicial and results in gross miscarriage of justice such charge will not be considered harmful as a matter of law. Venable v. State Hwy. Dep't, 138 Ga. App. 788, 227 S.E.2d 509 (1976).
Erroneous charge must be blatantly apparent and prejudicial to the extent that the charges raises a question as to whether the losing parties have, to some extent, at least been deprived of a fair trial because of it to be considered harmful as a matter of law. Dendy v. Metropolitan Atlanta Rapid Transit Auth., 163 Ga. App. 213, 293 S.E.2d 372 (1982), rev'd on other grounds, 250 Ga. 538, 299 S.E.2d 876 (1983).
Because the appellant stated that the appellant had no objections to a jury charge when the court made inquiry, and did not show that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raised a question whether the appellant had been deprived, to some extent, of a fair trial, the appellant waived the right to raise the issue on appeal. Maynard v. State, 171 Ga. App. 605, 320 S.E.2d 806 (1984).
When, in a murder prosecution, the trial court erroneously charged the jury that the jury could infer the defendant's intent to kill the victim from the defendant's use of a deadly weapon, but the defendant did not object to this charge, the charge was not a "substantial error," within the meaning of O.C.G.A. § 5-5-24(c), and the charge was subject to typical waiver rules, so defendant's failure to object at trial waived the issue on appeal. Morgan v. State, 279 Ga. 6, 608 S.E.2d 619 (2005).
Failure to define the term "extraordinary diligence" in an instruction on the law pertaining to the duty a carrier owes to the carriers passengers was not harmful error because the term is comprised of words of ordinary understanding and is self-explanatory. Adams v. MARTA, 246 Ga. App. 698, 542 S.E.2d 130 (2000).
Unconstitutional to convict defendant of unindicted charge.
- When a reasonable probability existed that the jury convicted the defendant of a firearms charge in a manner not charged in the indictment (through burglary, rather than during an aggravated assault), the error violated the defendant's due process rights and was sufficiently egregious to preclude a finding that the error was waived. Levin v. State, 222 Ga. App. 123, 473 S.E.2d 582 (1996).
Instructions on assumption of risk and avoidance of consequences in battery.
- In an action for battery, instructions on the principles of assumption of risk and avoidance of consequences by exercise of ordinary care for one's own safety created the strong risk of misleading the jury to conclude that the principles charged constituted defenses to battery, resulting in substantial, prejudicial error. Williams v. Knight, 211 Ga. App. 420, 439 S.E.2d 507 (1994).
Failure to charge on any legal theory of recovery is harmful as a matter of law. Fowler v. Gorrell, 148 Ga. App. 573, 251 S.E.2d 819 (1978).
New trial for failure, in charge, to give benefit of defense theory sustained by evidence.
- When, in charge, trial judge fails to give benefit of a theory of defense which is sustained by evidence, a new trial must be granted. Fowler v. Gorrell, 148 Ga. App. 573, 251 S.E.2d 819 (1978).
Failure to give a charge on criminal defendant's sole defense, even without a request, constitutes reversible error if there is some evidence to support the charge. Moore v. State, 246 Ga. App. 163, 539 S.E.2d 851 (2000).
Failure to charge on defense of accident.
- In an action to recover for injuries suffered when plaintiff fell from the plaintiff's horse during a riding lesson, when another horse got loose in the riding ring, the trial court erred by refusing to give a jury instruction on accident. Smoky, Inc. v. McCray, 196 Ga. App. 650, 396 S.E.2d 794 (1990).
Jury charge as to settlement with two codefendants tending to confuse jury.
- When the trial court's charge to the jury as to the plaintiffs' settlement with two codefendants tended to confuse and mislead the jury, the case must be remanded to the trial court for a new trial, the magnitude of the error in the charge falls within the parameters of O.C.G.A § 5-5-24. King Cotton, Ltd. v. Powers, 190 Ga. App. 845, 380 S.E.2d 481 (1989).
"Deadly force" instruction given when police prosecuted.
- In a prosecution against police officers for manslaughter, arising out of the shooting of the victim in a parking lot following a report that the victim had threatened someone with a knife, the justification charge given was wholly inadequate, as the charge applied to ordinary citizens, not to law enforcement officers acting in the line of duty, who are allowed to use deadly force on the reasonable belief that the suspect possesses a deadly weapon. Because this omission was harmful as a matter of law, the case was reversed, notwithstanding the fact that the charge was verbally requested after the jury began deliberating. Robinson v. State, 221 Ga. App. 865, 473 S.E.2d 519 (1996).
Charge must be necessarily harmful to complaining party to constitute substantial error.
- Under subsection (c), before the appellate court will reverse the trial court because of an erroneous instruction not excepted to in the trial court, it must appear that such charge was necessarily harmful to the complaining party. Any charge which is not necessarily harmful to the complaining party is not such substantial error as to require reversal of the case, in the absence of a proper exception to the charge. Moon v. Kimberly, 116 Ga. App. 74, 156 S.E.2d 414 (1967); Allstate Ins. Co. v. Justice, 229 Ga. App. 137, 493 S.E.2d 532 (1997).
Charge which failed to define the elements of rape, and which was compounded by gratuitous references to irrelevant matters such as whether "an actual theft occurred" and "criminal negligence," was substantially in error, was harmful as a matter of law, and deprived the defendant of the defendant's right to a fair trial. Phelps v. State, 192 Ga. App. 193, 384 S.E.2d 260 (1989).
Child molestation as a lesser included offense of rape should not have been submitted to the jury because the rape indictment did not allege that the victim was under the age of 16, which is an essential element of the offense of child molestation. Heggs v. State, 246 Ga. App. 354, 540 S.E.2d 643 (2000).
Failure to charge lesser included offense.
- Because the defendant was acquitted of the charges in the indictment and convicted only of a lesser included charge not listed in the indictment, statutory rape, an erroneous jury charge authorizing the conviction of statutory rape would have been a substantial error harmful as a matter of law; therefore, the appellate court addressed the merits of the defendant's appellate challenge to a jury instruction on statutory rape, despite the fact that the defendant did not object to the instruction at trial. Stulb v. State, 279 Ga. App. 547, 631 S.E.2d 765 (2006).
Charge which failed to define elements of assault.
- In a prosecution for aggravated assault, failure to include in the charge the requisite elements of assault was reversible error. Howard v. State, 230 Ga. App. 437, 496 S.E.2d 532 (1998).
Charge precluding consideration of parties' rights unless third litigant prevails on independent issue.
- Charge which would preclude the jury from considering rights of two litigants unless the third litigant prevails upon independent issue is tainted with substantial error. King v. Browning, 246 Ga. 46, 268 S.E.2d 653 (1980).
Error in instructing as to
§ 46-8-292, not harmful. - Error in instructing jury on former Code 1933, § 94-1108 (see O.C.G.A. § 46-8-292) (relating to proof of injury from running of train as prima-facie evidence of lack of reasonable skill and care) was not harmful to the extent required to come within necessity of noting exception as required by subsection (c) former Code 1933, § 70-207. Central of Ga. Ry. v. Luther, 128 Ga. App. 178, 196 S.E.2d 149 (1973).
Error in negligent entrustment charge.
- Charge on negligent entrustment which omitted the element of "actual knowledge" constituted substantial error as a matter of law. Bloom v. Doe, 214 Ga. App. 94, 447 S.E.2d 72 (1992); Roura v. State, 214 Ga. App. 43, 447 S.E.2d 52 (1994).
Error induced by defense counsel not ground for new trial.
- When counsel in a criminal case introduces evidence on theory of defense and thereafter asks for no charge on valid defense and responds to court that counsel has no exceptions, error in charge is self-induced and will not be ground for new trial. Mahomet v. State, 151 Ga. App. 462, 260 S.E.2d 363 (1979), cert. denied, 445 U.S. 943, 100 S. Ct. 1339, 63 L. Ed. 2d 776 (1980).
When counsel acquiesces in giving of or failure to give instruction.
- Subsection (c) refers only to failure to make objection to charge, and not to those instances when giving of an instruction, or failure to give an instruction, is specifically acquiesced in by counsel. Brown v. Garcia, 154 Ga. App. 837, 270 S.E.2d 63 (1980).
When the defendant failed to object at trial to a jury instruction allowing intent to kill to be inferred from the use of a deadly weapon, the court found no substantial error because the jury could have concluded there was an intent to kill from the testimony of four witnesses that the defendant said the defendant was going to kill the victim; hence, no review of the instruction was required under O.C.G.A. § 5-5-24(c). Lester v. State, 262 Ga. App. 707, 586 S.E.2d 408 (2003).
In a first degree forgery prosecution, the trial court should not have instructed the jury that the jury was not bound to believe testimony as to facts incredible, impossible, or inherently improbable, but the defendant's failure to object, O.C.G.A. § 5-5-24(c), waived the error given the strength of the evidence against the defendant and the trial court's charge in its entirety. Overton v. State, 277 Ga. App. 819, 627 S.E.2d 875 (2006).
Review of substantial error under O.C.G.A. § 5-5-24(c) was not available to a defendant who argued that a trial court erred in failing to give a jury charge on justification after a drug buyer attempted to rob the defendant's acquaintance because the failure to give the instruction was acquiesced in by counsel pursuant to the defense theory that the defendant did not have a gun and was merely present at the scene as an innocent bystander. Newton v. State, 303 Ga. App. 852, 695 S.E.2d 79 (2010).
Acquisition of appellate jurisdiction over question of substantial error in charge.
- If allegation of substantial error in charge is included in motion for new trial, jurisdiction of question for decision by appellate court is acquired in either of two ways: First, by specifically appealing from ruling on motion for new trial in notice of appeal and presenting such error in charge in enumeration of error, or, second, by filing notice of appeal from other appealable judgments and enumerating as error the ruling on motion for new trial. Tiller v. State, 224 Ga. 645, 164 S.E.2d 137 (1968).
Charge on element of intent.
- Trial court's erroneous instruction that there is no requirement that the state allege or prove that the defendant had the intent to deliver drugs was reversible error even though a general instruction as to how criminal intent may be shown was given. Jackson v. State, 205 Ga. App. 513, 422 S.E.2d 673 (1992).
Because the defendant failed to object to a jury charge on criminal intent or to reserve any objections, any error asserted on appeal was waived, as there was no substantial error shown pursuant to O.C.G.A. § 5-5-24(c); the trial court's instruction did not improperly shift the burden of proof to the defendant and the instruction did not deprive the defendant of a fair trial. Allen v. State, 275 Ga. App. 826, 622 S.E.2d 54 (2005).
Failure to instruct on actual and constructive possession.
- Whenthe prosecution and defense of a case turned on proof, or the lack of proof, that each of three defendants had actual or constructive possession of the cocaine and other dangerous drugs found under the seat of the rented car in which the defendants were passengers, without any instruction on the law of possession, the jury was left without appropriate guidelines for reaching the jury's verdict. The failure to so charge was substantial error and harmful as a matter of law and requires reversal of the convictions of both defendants. Ancrum v. State, 197 Ga. App. 819, 399 S.E.2d 574 (1990).
Failure to give an unrequested instruction on actual and constructive possession did not require reversal since, under the circumstances, it was not required in order to provide the proper guideline for the verdict. Edmond v. State, 228 Ga. App. 695, 492 S.E.2d 583 (1997).
Failure to instruct jury to disregard testimony of defendant's character.
- Trial court's failure to instruct the jury to disregard the testimony of defendant's general character or conduct in other transactions was an error which was so "blatantly apparent" and "highly prejudicial" as to deprive defendant, who failed to object to the testimony, of the defendant's right to a fair trial. Barnett v. State, 178 Ga. App. 685, 344 S.E.2d 665 (1986).
Failure to charge as to value of property as separate lots in condemnation case.
- On plaintiff's appeal from jury verdict in condemnation case involving a tract of land subdivided into 40 individual lots, the trial court did not instruct as to plaintiff's contentions regarding the value of the property as separate lots, although it would not admit separate tax records for each lot as evidence of their total value, so that any failure to give further instructions did not fall within the "harmful as a matter of law" requirement necessary to invoke subsection (c) of O.C.G.A. § 5-5-24. Blume v. Richmond County, 190 Ga. App. 366, 378 S.E.2d 694 (1989).
Charge on theory of reasonable probable use in a condemnation proceeding was erroneous because the charge allowed the jury to determine the value of the land on the date of the taking without ascribing any value to subterranean limestone deposits. Gunn v. DOT, 222 Ga. App. 684, 476 S.E.2d 46 (1996).
Charge on the burden of proof in a condemnation action was an error of law and was prejudicial because it went to the primary issue in the case, the value of the property, and shifted the burden of proof on that issue. Pendarvis Constr. Corp. v. Cobb County-Marietta Water Auth., 239 Ga. App. 14, 520 S.E.2d 530 (1999).
Reference to no-fault insurance law.
- When the plaintiff's attorney specifically requests the court to instruct the jury that the plaintiff can recover above the $5,000 no-fault statute provisions, there is no substantial error requiring reversal in the court's referring to the Georgia no-fault insurance law during the course of the trial and in the court's charge to the jury. Childers v. Morris, 166 Ga. App. 229, 303 S.E.2d 769 (1983).
Misstatement as to statute of limitations.
- Even though no objection was made to a jury charge, a misstatement therein as to the applicable statute of limitations in a child molestation case was reversible error since the jury could not have found defendant guilty if the correct charge had been given. Early v. State, 218 Ga. App. 869, 463 S.E.2d 706 (1995).
Slip of the tongue not substantial error.
- When, in a condemnation action, the use of "condemnees" rather than "condemnor" in the charge explaining the burden of proof is clearly inadvertent, a slip of the tongue, the error is not likely to confuse or mislead the jury and, thus, is not so substantial as to require reversal. Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983).
Charge regarding guilty plea.
- In a negligence case, after the trial court charged the jury that there was evidence, via a traffic citation, of a plea of guilty by the defendant, which could be considered as an admission, it would have been appropriate to charge that, if the jury concluded no guilty plea was entered, the jury should disregard the citation, but in the absence of any such request or objection to the citation's omission, there was no basis for reversal. The trial court gave the charge requested by the defendant, which informed the jury that evidence of the plea was not conclusive of the issues before the jury, and the court otherwise fully instructed the jury on the general principles of negligence. Under these circumstances the exception of subsection (c) of O.C.G.A. § 5-5-24 was inapplicable, since even if the defendant did not acquiesce in the failure to charge, the charge as given did not amount to substantial error harmful as a matter of law. Hunter v. Hardnett, 199 Ga. App. 443, 405 S.E.2d 286, cert. denied, 199 Ga. App. 906, 405 S.E.2d 286 (1991).
Instructions erroneously stating operation of law.
- In an action to recover damages for fraud connected with the sale and purchase of a car, the trial court's erroneous recharge directing the jury that the car would be returned to the seller by operation of law was so blatantly in error as to raise the question whether the buyer was deprived of a fair trial; further, the error was an error of law and the error was prejudicial because the error went to the primary issue in the case, the value of the car, and nothing in the evidence supported the jury verdict and subsequent judgment returning the car to the seller. Brown v. Garrett, 261 Ga. App. 823, 584 S.E.2d 48 (2003).
There was no substantial error in the jury charge as the friend who testified against the defendant had already been convicted of the crime at the time of the defendant's trial and there was no evidence of any deals with the state; defendant did not show that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raised a question whether defendant was deprived of a fair trial and thus waived objection to the charge. Jackson v. State, 259 Ga. App. 727, 578 S.E.2d 298 (2003).
With regard to a defendant's conviction on child molestation charges, the trial court did not err by failing to give a limiting instruction, absent a request, prior to testimony of certain acts the defendant committed against the victim two years before the incidents for which the defendant was on trial; defendant's failure to request such a limiting instruction required the defendant to demonstrate that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that the charge raised a question whether the defendant was deprived of a fair trial, however the defendant failed to make any such showing. Nichols v. State, 288 Ga. App. 118, 653 S.E.2d 300 (2007).
In convictions that included aggravated assault on a peace officer, defendant failed to show substantial error under O.C.G.A. § 5-5-24(c) in the instruction regarding use of a handgun as a deadly weapon because, viewed as a whole, the jury charge did not take from the jury's consideration the issue of whether the handgun was a deadly weapon. Smith v. State, 301 Ga. App. 670, 688 S.E.2d 636 (2009).
When the defendant did not file a proposed charge on corporations being a separate legal entity and did not ask for one during the charge conference, because the court's charge to the jury on contract formation included the requirements of having parties with the capacity to contract who consent and agree to all terms of the contract, and the defendant argued to the jury that if there was a promise, it came from the real estate development company, not the defendant personally, there was nothing in the court's charge to the jury that would have prevented the jury from agreeing with the defendant and finding no personal liability; thus, there was no substantial error in the jury charge that was harmful as a matter of law. Zambetti v. Cheeley Invs., L.P., 343 Ga. App. 637, 808 S.E.2d 41 (2017).
Error to find waiver based on induced error.
- It was error to hold that personal injury plaintiffs waived appellate review of a jury recharge under O.C.G.A. § 5-5-24(c) based on the doctrine of induced error; the "induced error" consisted solely of the plaintiffs' alleged failure to request specific language that would have made the recharge accurate and to object to the absence of an instruction concerning the foreseeability of an intervening act, and thus the acts the court of appeals held to have induced the error were the same acts excused by § 5-5-24(c) when there was substantial error in the charge. Pearson v. Tippmann Pneumatics, Inc., 281 Ga. 740, 642 S.E.2d 691 (2007).
Error not harmful as a matter of law.
- Trial court's failure to give a charge under O.C.G.A. § 24-4-6 was not harmful as a matter of law because the state presented direct evidence that the defendant committed the crime of kidnapping. Holden v. State, 287 Ga. App. 472, 651 S.E.2d 552 (2007), cert. denied, No. S08C0189, 2008 Ga. LEXIS 153 (Ga. 2008).
Failure to give inconsistent charge did not constitute substantial error.
- In a wrongful death suit brought by a personal representative, a failure to give a certain instruction did not constitute substantial error; the instruction would have been inconsistent with the procedures adopted by the trial court and acquiesced in by the parties, and the representative had not requested the instruction, so the asserted error was waived. Turner v. New Horizons Cmty. Serv. Bd., 287 Ga. App. 329, 651 S.E.2d 473 (2007).
Incorrect charge on fraudulent intent.
- An erroneous jury instruction regarding misrepresentation and concealment could be considered on appeal pursuant to O.C.G.A. § 5-5-24(c) even though grounds for an objection had not been stated as required by § 5-5-24(a). The charge, which incorrectly stated that fraudulent intent did not have to be proven, concerned legal principles that were central to the defense that a closing attorney had not acted with fraudulent intent. Lawyers Title Ins. Corp. v. New Freedom Mortg. Corp., 288 Ga. App. 350, 654 S.E.2d 190 (2007), cert. denied, 2008 Ga. LEXIS 288 (Ga. 2008).
Use of the word "a" instead of "the" was not substantial error warranting review absent an exception.
- Trial court's substitution of the word "a" for "the" in a jury charge regarding the factors to be used in the equitable division of marital property was not so substantial or necessarily harmful as to warrant review under O.C.G.A. § 5-5-24(c) when no exception was taken by the spouse. Coe v. Coe, 285 Ga. 863, 684 S.E.2d 598 (2009).
RESEARCH REFERENCES
Am. Jur. 2d.
- 58 Am. Jur. 2d, New Trial, § 240 et seq.
C.J.S.- 66 C.J.S., New Trial, § 70 et seq.
ALR.- Instruction mentioning or suggesting specific sum as damages in action for personal injury or death, 2 A.L.R.2d 454.
Right of accused to additional argument on matters covered by amended or additional instructions, 15 A.L.R.2d 490.
Error as to instructions on burden of proof under doctrine of res ipsa loquitur as prejudicial, 29 A.L.R.2d 1390.
Absence of judge from courtroom during criminal trial prior to time of reception of verdict, 34 A.L.R.2d 683.
Duty of trial court to instruct on self-defense, in absence of request by accused, 56 A.L.R.2d 1170.
Right of defendant to complain, on appellate review, of instructions favoring codefendant, 60 A.L.R.2d 524.
Remarks or acts of trial judge criticizing, rebuking, or punishing defense counsel in criminal case, as requiring new trial or reversal, 62 A.L.R.2d 166.
Instructions on sudden emergency in motor vehicle cases, 80 A.L.R.2d 5.
Provision in Rule 51, Federal Rules of Civil Procedure, and similar state rules and statutes, requiring court to inform counsel, prior to argument to jury, of its proposed action upon requests for instructions, 91 A.L.R.2d 836.
Giving, in accused's absence, additional instruction to jury after submission of felony case, 94 A.L.R.2d 270.
Instructions in a personal injury action which, in effect, tell jurors that in assessing damages they should put themselves in injured person's place, 96 A.L.R.2d 760.
Instruction as to possible effect of verdict on insurance rates as prejudicial error, 100 A.L.R.2d 345.
Prejudicial effect of statement of court that if jury makes mistake in convicting it can be corrected by other authorities, 5 A.L.R.3d 974.
Permitting documents or tape recordings containing confessions of guilt of incriminating admissions to be taken into jury room in criminal case, 37 A.L.R.3d 238.
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 instructions on credibility of alibi witnesses, 72 A.L.R.3d 617.
Instructions to jury: sympathy to accused as appropriate factor in jury consideration, 72 A.L.R.3d 842.
Propriety of, or prejudicial effect of omitting or of giving, instruction to jury, in prosecution for rape or other sexual offense, as to ease of making or difficulty of defending against such a charge, 92 A.L.R.3d 866.
Lesser-related state offense instructions: modern status, 50 A.L.R.4th 1081.