Appellant brings this appeal from his conviction for malice murder, and alleges error in the trial court's charge to the jury. 1
1. The evidence presented by the State established that Jerome Carson died from a gunshot wound 2
inflicted by appellant following an altercation between appellant and his brother on one side, and the victim and his brother on the other side, over beer. The jury was authorized to conclude beyond a reasonable doubt that appellant was guilty of malice murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Appellant takes issue with the trial court's instructions to the jury that, should they find beyond a reasonable doubt that appellant committed either of the offenses charged, "it would be [their] duty to convict" appellant of that charge. The trial court also instructed the jury that, should reasonable doubt as to the guilt of appellant not exist in their minds, then they "should convict." Appellant asserts that the trial court's instructions amount to the direction of a guilty verdict.
A jury possesses a de facto power to acquit a defendant regardless of the strength of the evidence presented against him. Cargill v. State, 255 Ga. 616
(30 d) (340 SE2d 891
) (1986). However,
[t]he duty of a jury is to be distinguished from its power. Its duty is to apply the law to the facts and to reach a verdict which speaks the truth. [Cits.] If, after considering all of the evidence, the jury finds that the [S]tate has carried its burden of proving beyond a reasonable doubt every essential allegation in the indictment, and is convinced beyond a reasonable doubt of the defendant's guilt of the crime charged, it should convict. [ Felker v. State, 252 Ga. 351
(13 b) (314 SE2d 621
3. Appellant maintains the evidence presented at trial was not sufficient to sustain a charge on the law of flight.
The State presented evidence that appellant, while driving a car, fired shots at a car containing the victim and the victim's brother. When the victims drove off, appellant drove off in another direction, dropped his passenger off, reported what happened to his family, and went to a convenience store to keep a friend company. Appellant testified he was not aware that anyone had been wounded by the gunfire until he was so told by the arresting officer.
Where the defendant departs the scene immediately after the incident, it is not error to charge on the issue of flight of the defendant. It is for the jury to determine if his sudden departure was due to consciousness of guilt or other reasons. [ Lockette v. State, 181 Ga. App. 649 (1) (353 SE2d 585) (1987)
See also Montgomery v. State, 241 Ga. 396 (3) (245 SE2d 652) (1978)
. This court has recently rejected appellant's contention that a charge on flight must be predicated upon evidence that the defendant attempted to "evade the course of justice" or concealed himself. Renner v. State, 260 Ga. 515
(3 a) (397 SE2d 683
) (1990). Since there was evidence to support a charge on flight, 3
the trial court did not err by instructing the jury on the subject.
SEARS-COLLINS, Justice, dissenting.
I respectfully dissent to Division 2 of the majority opinion. While, I recognize that this court has continued to approve an instruction that a jury has the duty to convict where the evidence proves that a criminal defendant is guilty beyond a reasonable doubt, Miller v. State, 260 Ga. 191 (13) (391 SE2d 642) (1990)
, I believe that such a charge fails to inform a jury of its inherent power to find justice, particularly when it is repeatedly given by the trial judge, as in this case.
As noted by Justice Benham in the majority opinion, instructing the jury that it "would be authorized to find the defendant guilty" (emphasis supplied), is always the more sound approach. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2d ed. 1991).
There is a key definitional difference between the words duty and authority. Duty implies an obligatory task, mode of conduct, or service to be performed by those persons bound by the duty. It also implies that non-compliance will engender a penalty from a superseding entity with the power to command and to coerce obedience. But a jury always possesses the "de facto power to acquit the defendant, regardless of the strength of the evidence against him." Cargill v. State, 255 Ga. 616
, 642 (340 SE2d 891
) (1986). This concept stems from shared notions of democracy and our trust of the citizenry to act, doing honor to their own interpretation of responsibility, fairness, justice and mercy.
Compare the noun, duty, to the verb, authorize. To authorize means to exercise the power "to give legality or effective force to (a power, instrument, order)." Webster's Third New International Dictionary. It is a discretionary function. How, then, may a jury possessed of the ultimate power of acquittal and its discretionary use, reconcile that power with a trial court's instruction mandating a duty to convict? The answer is that it may not, at least, while still retaining any integrity, intellectual honesty, or logical consistency. This is the dilemma that we impose upon juries when we allow trial courts to give a charge that juries have the "duty to convict." 4
This problem may have its roots in Felker v. State, 252 Ga. 351
(13 b) (314 SE2d 621
) (1984), where this court thought to resolve the inconsistency by attempting to distinguish duty from power. There we stated:
[A jury's] duty is to apply the laws to the facts and to reach a verdict which speaks the truth. [Cits.] If, after considering all of the evidence, the jury finds that the state has carried its burden of proving beyond a reasonable doubt every essential allegation in the indictment, and is convinced beyond a reasonable doubt of the defendant's guilt of the crime charged, it should convict. (Emphasis supplied.)
However, the word should, being merely the past tense of the word shall, is mandatory. 5
It does nothing to rectify the conflict between the jury's supreme power to acquit and the implication that the power of acquittal is somehow subservient to a duty to convict.
Because Division 2 of the majority opinion reaffirms our approval of a misleading jury charge, repeated no fewer than five times by the trial judge, I must respectfully dissent. When the lives and liberty of men and women are at stake, words ought not pass from judges to juries too lightly.
Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, Michael J. Bowers, Attorney General, Mary H. Hines, Staff Attorney, for appellee.