
    7349.
    Eisow v. The State.
   Wade, J.

1. It is complained that the court erred in charging the jury as follows: “The defendant entered upon the trial of the case with the presumption of his innocence in his favor, and that presumption remains with him until his guilt is established to your satisfaction; that is, until you twelve gentlemen, when you go, into the room to determine this case, unanimously reach the conclusion that he is guilty. It is to be treated by you, in reaching that conclusion, as equivalent to sufficient evidence to, make a prima facie case of his innocence, or, to speak of it otherwise, it is a presumption in his favor, which must be overcome by evidence which satisfies your minds of his guilt.” Error is assigned on this charge because the court did not instruct the jury “that it was necessary for the prosecution to show the defendant’s guilt beyond a reasonable doubt, and that his guilt must appear in that way.” Considering this excerpt alone and not in connection with the entire charge of the court, it is undoubtedly an incorrect statement of the law, but when it is considered with its context the exception to it is not well taken, since the instruction complained of was immediately followed by an instruction that “The burden of proof is upon the State to establish his guilt by proof of the material allegations in the indictment to a moral and reasonable certainty, and beyond a reasonable doubt, before [the jury] will be authorized under the law to convict him;” and this instruction must be considered as qualifying what immediately precedes it. The case of Atlantia Coast Line R. Co. v. Canty, 12 Ga. App. 411 (77 S. E. 659), and similar eases are not in point.

Decided May 1, 1916.

Indictment for wife beating; from Cobb superior court — Judge Patterson. February 36, 1916.

George F. Gober, W. I. Heyward, G. B. Wallcer, for plaintiff in error. Herbert Clay, solicitor-general, contra.

2. There is no substantial merit in the only remaining special exception, . the evidence fully authorized the verdict, and the court did not err in overruling the motion for a new trial. Judgment affirmed.  