Holtbrook. v. State

76 So. 2d 349, 38 Ala. App. 77, 1954 Ala. App. LEXIS 324

Opinion

CARR, Presiding Judge.

This is an appeal from a judgment of conviction for the offense of burglary.

The court refused to the defendant the-following written charge:

“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, they should find him not guilty.”

This instruction was not covered, or substantially so, by the court’s oral charge or given written charges.

We reviewed the propriety of the refusal of this identical instruction in the recent case of Sanford v. State, Ala.App., 75 So. 2d 109,¹ certiorari denied, Ala., 75 So.2d 85.² We went into the question with considerable care and concluded that it was reversible error to refuse the charge. We must adhere to this authority in the instant case.

There are several other questions presented by the record, but none of them will likely reappear in the event of another trial.

The judgment of the court below is ordered reversed and the cause is remanded.

Reversed and remanded.

Footnotes

1

. 37 Ala.App. 603.

2

. 261 Ala. 699.