Dillard v. State

371 So. 2d 946

• Court: Court of Criminal Appeals of Alabama
• Decided: November 21, 1978
• Docket: 4 Div. 573
• Status: Published

Opinion

BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant was tried and convicted of murder in the first degree. The victim was John Dewayne Smith. This is an indigent appeal.

It is not necessary to set out the evidence or any part thereof. Suffice it is the trial court refused to give appellant’s written charge 27 which reads:

“DEFENDANT’S REQUESTED CHARGE NO. 27

“If you have a reasonable doubt of Defendant’s guilt growing out of the evidence or any part of it, you must acquit him.”

We fail to find in the record that this charge was covered by the oral charge or written charges requested and given by the court.

The court committed reversible error in its refusal to give this charge. Tillman v. State, Ala.Cr.App., 360 So.2d 1074, cert. den. Ala., 360 So.2d 1075; and cited cases.

We pretermit considering other contentions of error. Perhaps these same rulings asserted to be error will not be invoked at the next trial.

Because of the court’s error in refusing charge 27, supra, the judgment is reversed and the cause is remanded for disposition as required by law.

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.