Defendant was indicted, along with another, for the offense of armed robbery. This defendant was thereafter tried, based upon his defense that he was so intoxicated that he was incapable of forming the prerequisite criminal intent to commit the armed robbery, although he did remember that he was in the Majik Market on the day of the robbery. He was convicted and sentenced to serve 15 years, the first 10 years in confinement and the balance of said sentence to be served on probation. A motion for new trial, as amended, was filed,' heard and denied. Defendant appeals. Held:
1. The first enumeration of error contends that the trial court erred in charging on intent that same "may be inferred from the proven circumstances or by acts and conduct or it may be presumed when it is the natural and necessary consequences of the act, but the presumption may be rebutted by any evidence to the contrary." Defendant contends this was a burden shifting charge found to be unconstitutional in Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39), in that the jury may have interpreted the presumption as conclusive and as shifting the burden of persuasion to the defendant as to the element of intent. In Hosch v. State, 246 Ga. 417
, 419-.420 (3) (271 SE2d 817
), the Supreme Court of Georgia considered a somewhat similar charge in the light of Sandstrom v. Montana, 442 U. S. 510, supra, but determined that in view of the trial court's charges on the presumption of innocence, the burden of proof, reasonable doubt, and intent as a jury question and the fact that the jury was instructed that the presumption may be rebutted "the jury could not have interpreted the charge as shifting the burden of persuasion to the defendant," citing Lackey v. State, 246 Ga. 331 (271 SE2d 478)
. Also, at page 420, the Supreme Court stated that it did not approve the continued use of this charge, citing Kramer v. State, 230 Ga. 855 (1) (199 SE2d 805)
, in footnote 1, and in particular stated that absent explanatory language the charge should not be cast in terms of " 'The law presumes' " as such phrase, standing alone, would be subject to misinterpretation by the jury. Our examination of the charge here clearly distinguishes the case sub judice from that of Sandstrom, and the language of the charge here stated clearly that the burden of proof was upon the state to prove that the act alleged to be criminal is a criminal act beyond a reasonable doubt, that specific intent to commit the crime charged is an essential element which must be proved by the state beyond a reasonable doubt, that intent is always a question for the jury and is "ordinarily ascertained by facts and conduct," although it may be shown in many cases "provided the jury finds it existed from the evidence produced," and "may be inferred from the proven circumstances or by acts and conduct or it may be presumed when it is the natural and necessary consequences of the act, but the presumption may be rebutted by any evidence to the contrary." Under the circumstances here and based upon the decision of Hosch v. State, 246 Ga. 417
, 419-420, supra, we find no reversible error as the instruction is in nowise burden shifting. There is no merit in this complaint.
State, 246 Ga. 417
-420, supra, has been supplied, and it has been made clear to the jury that any presumption is a permissive presumption rather than a mandatory presumption which the jury was allowed to consider. The court had charged on the burden of proof, reasonable doubt and intent as a jury question, and the jury could not have interpreted the charge as shifting the burden to the defendant. There is no merit in this complaint.
Joseph H. Briley, District Attorney, for appellee.