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, not- 5-5-24 withstanding 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 361 Page: 362 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Substantial Error as a Matter of Law (Cont’d) 2. Application (Cont’d) 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 Date: 06/14/13 Time: 12:31:21 5-5-24 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). 362 Page: 363 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-5-24 Date: 06/14/13 Time: 12:31:21 GA RV 13 RV 4(T4-6) - EP NEW TRIAL 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). 5-5-24 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, 363 Page: 364 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Substantial Error as a Matter of Law (Cont’d) 2. Application (Cont’d) 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. Date: 06/14/13 Time: 12:31:21 5-5-24 823, 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). 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 364 Page: 365 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-5-24 Date: 06/14/13 Time: 12:31:21 GA RV 13 RV 4(T4-6) - EP NEW TRIAL § 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). 5-5-24 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).