57 So. 88 | Ala. Ct. App. | 1911
The defendant requested the court to give this written charge: “A reasonable doubt is not the same as the probability of his innocence. A reasonable doubt of the defendant’s guilt may exist when the evidence fails to convince the jury that there is a probability of defendant’s innocence.” In reference to the action of the court in this connection the bill of exceptions states: “The court gave this charge a,t the request of the defendant, but at that time and in the presence of the jury made the following remarks in reference to said charge, to wit: ‘This is a fool charge, but I will give it to you, gentlemen of the jury,
The statute provides that “charges moved for by either party must be iu writing, and must be given or refused in the terms in which they are written.”—Code, § 5364. In giving effect to this statute it has been held that the court may explain to the jury a written charge given at the instance of a party, but is not permitted to qualify or modify it (Callaway & Truitt v. Gay, 143 Ala. 524) ; and that even when a given written charge asserts a proposition which is legally incorrect, or which for any reason the court might properly have refused to assert, the statute has the.effect of making the addition to it by the court of any qualification of it a reversible error.—Eiland v. The State, 52 Ala. 322; Edgar v. The State, 43 Ala. 45. It cannot well be claimed that by the act of the court in accompanying the giving of an instruction requested with a statement that it is a fool charge widely in the opinion of the court, is misleading, the instruction as given is not so modified, and its weight- with the jury as a guide for their deliberations so impaired, as probably to lead them to consider it, if they consider it at all, mainly with the view of not being misled by it, rather than to regard it with that respect which should be accorded to the instructions of the court as to the law applicable to the issues of fact to be passed on. Without regard to whether or not there was merit in the court’s criticism of the charge, it was improper for it to indulge in disparaging remarks to the jury in reference to a proposition .embodied in a charge given to them as a part of the law by which they should be governed in the discharge of the duty imposed upon them. The jury should not, by any act or statement of the court, be left under the
Other questions presented by the record need not be passed on, as they may not arise on another trial.
Reversed and remanded.