# State v. Stonaker

> Supreme Court of Georgia · January 8, 1976 · 236 Ga. 1

URL: https://www.frixlaw.com/law-library/cases/9588930

## Case

- **Full name:** The State v. Stonaker
- **Court:** Supreme Court of Georgia
- **Decided:** January 8, 1976
- **Citations:** 236 Ga. 1; 222 S.E.2d 354; 1976 Ga. LEXIS 759
- **Precedential status:** Published
- **Opinion:** Concurrence by Hill
- **Judges:** Gunter, Hill
- **Cited by:** 319 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9588930

## Opinion text

Hill, Justice,
concurring specially.
I concur in the opinion and judgment of the court. I feel compelled, however, to state my reasons for joining the holding that the failure of the trial judge to charge on a lesser crime included in the crime alleged in the indictment or accusation, without written request by the state or the accused, is not error.
In the majority of criminal trials the defendant takes the position that he is not guilty of the crime alleged or any other crime for which he could be convicted. A defendant rarely contends at trial that he is not guilty of the crime alleged, but might be guilty of a lesser included offense. As a matter of tactics, the defendant defends at trial on the basis that the jury should find him not guilty *4 and set him free. 1
After the jury finds the defendant guilty of the crime alleged in the indictment and sentence is imposed thereon, the strategy of the defense is to obtain a new trial on any reversible error, including failure of the trial judge to charge a lesser included offense which the defendant would not have requested at the original trial. 2 This change in defense strategy is particularly noticeable in cases where appellate defense counsel is not the same attorney who tried the case. New appellate counsel reviews the transcript of the trial and sees that the defendant might have received a lighter sentence if he had been found guilty of a lesser crime which was not given in charge. Appellate counsel therefore seeks a new trial on the ground that the trial judge did not charge, without request, a lesser included offense, notwithstanding the fact that the defendant took the position at the original trial that he was not guilty of any offense for which he could be convicted and should be set free.
Under the prior rule (that the trial judge was required to charge, without request, the law applicable to lesser included offenses, where the evidence would have authorized conviction on a lesser offense), the defendant was permitted to defend his first trial as stated above, and get a new trial because the trial judge failed to charge, without request, the lesser included offense. That is to say, a defendant accused of an offense, as to which there was a lesser included offense as shown by the evidence, was virtually assured of a second trial if he could avoid referring to the lesser offense at his first trial and if the trial judge only charged the jury according to the defendant’s announced theory of defense.
Today’s decision will assist trial judges by placing the duty upon counsel for the defendant and for the state to request that the jury be charged as to applicable lesser included offenses where instruction as to such offenses is *5 desired by either party.
It is for the foregoing reasons that I concur in the opinion and judgment of the court.
In this connection, see Brown v. State, 235 Ga. 806 (2); Edwards v. State, 235 Ga. 603 (3).
See Brown v. State, supra; Edwards v. State, supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9588930. Public record. Not legal advice.