Opinion
72783.
DECIDED SEPTEMBER 10, 1986.
Drug violations. Clayton Superior Court. Before Judge Ison.
Martin L. Cowen III, for appellant.
Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.
Nevins appeals from his conviction of two counts of violating the Georgia Controlled Substances Act by possessing tetrahydrocannabinols and marijuana with intent to distribute those substances. In his sole enumeration of error appellant contends the trial court erred by charging the jury: "I charge you that every person is presumed to be of sound mind and discretion but this presumption may be rebutted." Appellant argues that this charge shifted the burden of persuasion to him on an essential element of the offenses charged, and is reversible error under the ruling in Francis v. Franklin, 471 U.S. 307 ( 105 SC 1965, 85 L.Ed.2d 344). This enumeration of error is without merit.
The presumption of sanity referred to in the charge complained of did not relate to an element of the offenses charged. There was no issue in this case as to mental competency or insanity of appellant, and under Georgia law every person is presumed to be of sound mind and discretion, but this presumption may be rebutted. OCGA § 16-2-3; Butler v. State, 252 Ga. 135, 137 ( 311 S.E.2d 473) (1984); Strozier v. State, 254 Ga. 712, 713 ( 334 S.E.2d 181) (1985) (decided subsequent to Francis, supra). Thus, the court's charge was a correct statement of the law. Francis v. Franklin, supra, did not deal with the charge complained of here; rather, Francis involved a charge on intent, which was an essential element of the offense of murder with which the defendant Franklin was charged. Thus, Francis has no application to the charge in the instant case, and there was no error in the court's charge. Judgment affirmed. Banke, C. J., and Birdsong, P. J., concur.