GA 16-3-40 - GA 16-3-40

Burden of Proof State must prove defendant's presence at commission of offense, beyond reasonable doubt when it is an essential element of the crime. Smith v. Smith, 321 F. Supp. 482 (N.D. Ga. 1970), aff'd, 454 F.2d 572 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S. Ct. 99 , 34 L. Ed. 2 d 141 (1972), commented on in 23 Mercer L. Rev. 977 (1972). Since the true effect of an alibi defense is to traverse the state's proof that the defendant committed the crime, the charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt. Rivers v. State, 250 Ga. 288 , 298 S.E.2d 10 (1982). Burden of proving defendant's presence is on s...