Beavers v. State

23 So. 2d 602, 32 Ala. App. 223, 1945 Ala. App. LEXIS 331

• Court: Alabama Court of Appeals
• Decided: March 13, 1945
• Docket: 8 Div. 437.
• Status: Published

Opinions

On rehearing.

In the peculiar circumstances of this particular case, we have held that it was error, for which the judgment of conviction should be reversed, for the trial court to refuse to give to the jury duly requested written charge 7, quoted in our original opinion. We stand by that decision.

As an answer to the insistence of the Attorney General that we erred, we quote from his brief:

“This Honorable Court held that Charge No. 7, — was a good charge and should have been given. The court cited the case of Maddox v. State, 20 Ala.App. 497, 103 So. 99, as authority for holding Charge No. 7 a good charge.

“In dealing with the Maddox case this court cited the cases of Taylor v. State, 149 Ala. 32, 42 So. 996, and Watts v. State, 177 Ala. 24, 59 So. 270, to fortify its conelusion that the identical charge, here under consideration, and the identical charge in the Maddox case was a good charge and its refusal error. This Court in the Maddox case, supra, said that charges similar in principle and substance were approved by the Supreme Court in the Taylor and Watts cases.

“In the Taylor case the charge was: ‘The Court charges the jury that proof of good character, in connection with all the other evidence, may generate a reasonable doubt, which entitles the defendant to an acquittal, even though without such proof of good character the jury would convict.’

“In the Watts case, the charge was as follows: ‘Good character, if proved, when taken in connection with the whole evidence, may have the effect to generate such doubt as to authorize acquittal when- the jury would otherwise entertain no doubt.’

“We respectfully submit that Charge No. 7 in this case and the charge set out in the report of the case in the Maddox case are identical, but that both of these charges differ greatly from the charges in the Taylor and Watts case, supra.”

We simply differ with the Attorney General. To our minds, the charges mentioned are in substance the Same..

We think the judgment of conviction should be reversed.

And the application for rehearing is overruled.

Application overruled.

CARR, J., dissents.

PER CURIAM.

Affirmed on authority of Beavers v. State, 247 Ala. 181, 23 So.2d 604.