The opinion
Gunter, Justice,
dissenting.
I would reverse the judgment in this case. I think that the charge on alibi given in this case was a burden-shifting charge and therefore violative of due process of law. A majority of this court now adopts this position, but this conviction is affirmed because the trial judge has certified, outside of the record originally certified to this court by the clerk of the trial court, that appellant’s counsel requested the charge on alibi that was given.
Code Ann. § 70-207 (b) provides that the trial judge shall file with the clerk of the trial court all requests to charge submitted to him, whether given in charge or not. If appellant’s counsel in fact requested the alibi charge given, it was not filed with the clerk of the trial court by the trial judge as the statute requires. Appellant’s counsel contends in his brief that he did not request the charge given, and the clerk of the court did not certify it as a part of the record in the case.
Code Ann. § 6-805 (f) provides that if anything material to either party is omitted from the record on appeal or is misstated in the record, the trial judge may direct that the omission or misstatement be corrected, and, if necessary, that a supplemental record shall be certified and transmitted "by the clerk of the trial court.” I do not interpret this statutory provision to mean that the trial judge can merely file his own certificate in the appellate court as to what transpired in the trial court. *733 This statutory provision also provides that if the "record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties, and resolve the difference so as to make the record conform to the truth.”
I think that burden-shifting charges are constitutionally infirm and are a denial to an accused person in a criminal case of his right to have the state prove his guilt beyond a reasonable doubt. I would reverse this conviction.
I respectfully dissent.