Boyd v. State
154 Ala. 9
Ala.
1908
Check Treatment
McCLELLAN, J.

This is the second appeal in this case. — Boyd v. The State, 150 Ala. 101, 43 South. 204. The indictment charged the value of the concealed and stolen property to be above that necessary to constitute a felony. After reversal, npon the succeeding trial below, “it was agreed by the state and defendant that as the defendant had been convicted, on a former trial of the misdemeanor charged in the indictment, and this amounted to an acquittal of the felony charge, the prosecution should be • only for the misdemeanor charged therein.” The jury’s verdict found the defendant guilty as charged in the indictment. The point is attempted to be now taken that the judgment does not follow the verdict, in that it adjudges the defendant guilty of a misdemeanor. Counsel for defendant, in their argument to this point, make no reference to the agreement above copied from the bill, of exceptions. Of course, the defendant is not injured in any event, cannot repudiate his agreement, and, besides, the lesser grade of offense was charged, inclusively, in the greater.

Near two score special charges were requested by the defendant, and with very few exceptions they were in*11dorsed “Given” by the trial judge, hut were not read to the jury. The court accompanied their delivery to the jury with the statement, “These are some written charges given at the request of the defendant;” and this was followed hy the direction to the jury, viz., “You may retire.” Whereupon the jury left the jury box and were proceeding to the door of the courtroom, and the defendant’s counsel “then requested the court to give the defendant an exception to his refusal to read the written charges to the jury and the court said that he would note an exception to his refusal to read the written charges to the jury, only with the statement that it had been requested after the jury had been discharged from the box.” It is, of course, the common practice, in the giving of special written charges, to read them to the jury, and doubtless the purpose therein is correctly stated in A. G. S. R. R. v. Arnold, 80 Ala. 608-609, 2 South. 337. But the exception in that case, presenting the action of the loNer court for review, was predicated upon the request of the defendant’s counsel, addressed to the court, “to read or to permit defendant’s counsel to read the charges given hy the court to the jury,” and the refusal of the court to do so — a very different status to that now under consideration. The exception here pressed is not based upon any refusal of the court at all, since it. does not appear that any request thereunto was made by defendant’s counsel. The omission to conform to the practice is in no sense a refusal to accord the right to have the charges read. Non constat the court may, from mere inadvertence, have omitted the reading of the charges to the jury. Aside from the inaptness of the exception, the exception, if otherwise serviceable, came too late after the jury had retired from its place. If the defendant’s counsel saw fit to rely upon the courts’ reading the charges to the jury until the jury retired and this with*12out directing the court’s attention to the omission, the ■injury, if any, must be attributed to the dereliction of counsel, and not to error of the court.

There is no merit in the insistence that charges are not “given,” in the contemplation of the statute (Code 1896, § 3328), unless they are read to the jury. The statute makes no such requirement, and that method — reading — is controlled by the general practice in the premises. The charges were “given” to the jury, and they were orally informed by the court that the charges were given at the request of the defendant. The omission to read them to the jury merely affected the method pursued, and did not operate to deny to the defendant any provisions of the statute (section 3328). In the numerous special charges given at the request of the defendant the jury were instructed Avith the utmost favor to the defendant, and the charges refused to him were fully covered by many of those given.

A careful consideration of the other rulings assigned reveals no error prejudicial to the defendant. The judgment of conviction is affirmed.

Affirmed.

Tyson, C. J., and Doavdell and Anderson, JJ., concur.