Atkins v. State

369 So. 2d 303, 1979 Ala. Crim. App. LEXIS 1575

• Court: Court of Criminal Appeals of Alabama
• Decided: February 20, 1979
• Docket: 6 Div. 890
• Status: Published

Opinion

BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was indicted (Count One) for burglary in the second degree; also (Count Two) for grand larceny. The jury returned a verdict of guilt on both counts. The trial court imposed a sentence of eight years imprisonment under Count One. The jury fined him $500 on Count Two. Defendant here appeals from a proper judgment that was entered.

It appears in the record that the defendant asked a total of seventy-nine written charges. Of this number, seven were given and seventy-two were refused.

We have reviewed all of the written charges and have read the oral charge. We pretermit discussing all of these refused charges for the reason that the judgment must be reversed because of the court’s refusal of two of them. On the next trial, the other refused charges may not be requested or the trial court may decide to give some of them.

The refusals which constitute error to reverse are numbered 15 and 71. They appear respectively on pages 31 and 48 in the record. They were not covered by the oral charge of the court, nor in the given charges. We quote them:

“15. If the evidence, or any part thereof, after a consideration of the whole of such evidence, generates a well-founded doubt of defendant’s guilty, the jury must acquit him.”

“71. The Court charges the jury that, if the jury, upon considering all the evidence, have a reasonable doubt about the defendant’s guilt, arising out of any part of the evidence, you should find him not guilty.”

Refusal of charges of like import was held to be error to reverse in cases as follows: Lambeth v. State, Ala.Cr.App. [Ms. January 16, 1979]; Bryant v. State, Ala. Cr.App., 348 So.2d 1136(3), cert. denied, Ala., 348 So.2d 1138; Richards v. State, Ala.Cr.App., 358 So.2d 488, cert. denied, Ala., 358 So.2d 490; Rakestraw v. State, 211 Ala. 535, 101 So. 181(4).

The judgment is reversed, and the cause is remanded.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a Retired Circuit Judge, serving as a judge of this court under the provisions of .§ 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.