Bayne v. State
375 So. 2d 1236
Ala. Crim. App.
1977
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Roy L. Bayne was charged with assaulting Jerry Wayne Crowder, Jr., with the intent to murder him, and after a jury trial, he was found guilty and sentenced to eleven years in the penitentiary.

After notice of appeal was filed, a motion for a new trial was filed and later denied.

Appellant is now before this court with a free transcript and appointed counsel.

In view of the following instance of error a recitation of evidence presented at trial is not necessary.

At the close of the trial, before the case was submitted to the jury, the defendant requested the following charge:

"The State must prove its charge, and prove it beyond a reasonable doubt, by evidence. The assertions of counsel are not evidence."

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Nowhere in the court's oral charge or in the defendant's requested written charges given by the trial court was there any instruction to the jury not to consider the assertions of counsel. Therefore, under the authority of Morse v. State,49 Ala. App. 203, 269 So.2d 916, the judgment of conviction is reversed and the cause remanded. Lane v. State, 85 Ala. 11,4 So. 730; Lamar v. State, Ala.Cr.App., 1977, 356 So.2d 677.

REVERSED AND REMANDED.

All the Judges concur.