We granted certiorari in this case, Anderson v. State, 199 Ga. App. 595 (405 SE2d 504) (1991)
, to consider two issues: the charge to the jury and the submission to the jury of written jury instructions.
1. The charge to the jury included all of the provisions of OCGA 40-6-391
(a) (as did Count 1 of the accusation), although some of them were not applicable.1
Anderson was convicted of Counts 1 and 2, and sentenced under Count 1.
(a) Our appellate courts often have held:
"It is not usually cause for new trial that an entire Code section is given . . . even though a part of the charge may be inapplicable under the facts in evidence." [Cits.] [Jolley v. State, 254 Ga. 624
, 628 (331 SE2d 516
) (1985).] 2
(b) However, the Court of Appeals also has held:
Where the inapplicable instruction authorizes the jury to reach a finding of guilty by a theory not supported by the evidence of record, we cannot say as a matter of law that the charge was neither confusing nor misleading. [Stanley v. State, 153 Ga. App. 42
, 47 (264 SE2d 533
(c) The record in this case indicates that the jury was confused about the charge. 3
No remedial instruction was given, nor did the accusation clarify the charge.
2. Because "we cannot say as a matter of law that the charge was neither confusing nor misleading," we conclude that the trial court's charge in this case requires reversal.
3. The Court of Appeals, quoting Davis v. Ins. Co. of N. A., 163 Ga. App. 280
, 282 (1) (294 SE2d 353
) (1982), suggests that the submission to the jury of written jury instructions is "an irregular practice and not to be condoned."
(a) Practices that have served adequately in former times may
(3) Under the combined influence of alcohol and any drug to a degree which renders him incapable of driving safely; or (4) While there is a .12 percent or more by weight of alcohol in his blood.
(c) There was no evidence presented that Anderson was under the influence of any drugs; the blood test indicated a level of .22 percent of alcohol in his blood.
not remain forever the best. In an age of expanding technology, complete and accurate written jury charges can be created within a few minutes.
In Llewellyn v. State, 241 Ga. 192
, 195 (243 SE2d 853
) (1978), we cited with approval a United States Court of Appeals decision:
"But we think it is frequently desirable that instructions which have been reduced to writing be not only read to the jury but also be handed over to the jury. This course is required in some states, and is widely practiced. United States courts are free to follow it. We see no good reason why the members of the jury should always be required to debate and rely upon their several recollections of what a judge said when proof of what he said is readily available." [Emphasis supplied.] [Citing Copeland v. United States, 152 F2d 769, 770 (D.C. Cir.) (cert. den. 328 U. S. 841 (66 SC 1010, 90 LE 1815) (1946)).]
(b) We do not wish that any beneficial trial process should be prohibited by an adherence to the mechanistic regimes of the past.
4. We agree with the Court of Appeals that the submission of written charges to the jury in this case is not cause for reversal.
HUNT, Justice, concurring in part, dissenting in part.
I agree entirely with Divisions 3 and 4, but respectfully disagree that the court's instructions to the jury were so erroneous as to require a reversal.
Gerald N. Blaney, Jr., Solicitor, for appellee.