Phillips v. State

Court of Criminal Appeals of Alabama

Phillips v. State

606 So. 2d 170, 1991 Ala. Crim. App. LEXIS 2631, 1991 WL 273404

CourtCourt of Criminal Appeals of Alabama

DecidedNovember 27, 1991

DocketCR-90-1364

StatusPublished

Cited by3 cases

This text of 606 So. 2d 170 (Phillips v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Phillips v. State, 606 So. 2d 170, 1991 Ala. Crim. App. LEXIS 2631, 1991 WL 273404 (Ala. Ct. App. 1991).

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Opinion

PER CURIAM.

The appellant appeals from his conviction for sexual abuse in the second degree, in violation of § 13A-6-67, Code of Alabama 1975. He received a one-year sentence.

The appellant contends that the trial court erred in charging the jury as follows:

“The defendant has testified as a witness on his own behalf. And when he does so, you must consider the testimony of the defendant along with all other evidence in light of the fact that he is the defendant and the interest he has in your verdict.” (Emphasis supplied.)

(R. 322.) The appellant contends that the trial court’s use of the word “must” constitutes reversible error, because, he argues, the instruction as given required the jury to consider the appellant’s testimony in light of his interest in the verdict. Thus, the trial court infringed on the role of the jury. We agree.

“It seems unnecessary to again say, what we have so many times already said: i.e. that the rule is that the jury may consider defendant’s testimony in the light of his interest, etc., not that they must.” Miller v. State, 21 Ala.App. 283, 107 So. 721, 722 (1926). See also Kyle v. State, 21 Ala.App. 256, 107 So. 222 (1926); Mann v. State, 20 Ala.App. 540, 103 So. 604 (1925). In Banks v. State, 448 So.2d 973 (Ala.Crim.App.1984), this court approved an instruction that stated that when a defendant testifies in his own behalf, the jury may consider his testimony along with the other evidence and in light of his interest in the verdict. This court stated that the charge [171]*171in Banks correctly stated the law and the duty of the jury, and should be given in every case in which the defendant testifies.

We find that the trial court’s charge was an incorrect statement of the law and that it infringed on the jury’s role as the ultimate factfinder in the case. Thus, the judgment is due to be reversed. In view of the foregoing, we find it unnecessary to consider the appellant’s remaining argument.

REVERSED AND REMANDED.

All the Judges concur.

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PER CURIAM.

The appellant appeals from his conviction for sexual abuse in the second degree, in violation of § 13A-6-67, Code of Alabama 1975. He received a one-year sentence.

The appellant contends that the trial court erred in charging the jury as follows:

“The defendant has testified as a witness on his own behalf. And when he does so, you must consider the testimony of the defendant along with all other evidence in light of the fact that he is the defendant and the interest he has in your verdict.” (Emphasis supplied.)

(R. 322.) The appellant contends that the trial court’s use of the word “must” constitutes reversible error, because, he argues, the instruction as given required the jury to consider the appellant’s testimony in light of his interest in the verdict. Thus, the trial court infringed on the role of the jury. We agree.

“It seems unnecessary to again say, what we have so many times already said: i.e. that the rule is that the jury may consider defendant’s testimony in the light of his interest, etc., not that they must.” Miller v. State, 21 Ala.App. 283, 107 So. 721, 722 (1926). See also Kyle v. State, 21 Ala.App. 256, 107 So. 222 (1926); Mann v. State, 20 Ala.App. 540, 103 So. 604 (1925). In Banks v. State, 448 So.2d 973 (Ala.Crim.App.1984), this court approved an instruction that stated that when a defendant testifies in his own behalf, the jury may consider his testimony along with the other evidence and in light of his interest in the verdict. This court stated that the charge [171]*171in Banks correctly stated the law and the duty of the jury, and should be given in every case in which the defendant testifies.

We find that the trial court’s charge was an incorrect statement of the law and that it infringed on the jury’s role as the ultimate factfinder in the case. Thus, the judgment is due to be reversed. In view of the foregoing, we find it unnecessary to consider the appellant’s remaining argument.

REVERSED AND REMANDED.

All the Judges concur.

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606 So. 2d 170, 1991 Ala. Crim. App. LEXIS 2631, 1991 WL 273404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-state-alacrimapp-1991.

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