108 So. 266 | Ala. Ct. App. | 1926
The controlling principles of law governing this case necessitates a reversal of the judgment of conviction from which this appeal was taken.
In this case the court instructed the jury orally as follows:
"The court charges the jury that, if you believe the evidence in this case beyond a reasonable doubt, you will find the defendant guilty as charged under count 2 of the indictment. The form of your verdict will be, 'We, the jury, find the defendant guilty as charged under count 2 of the indictment,' one of you signing it as foreman."
No such written charge is shown by the record, and to thus charge a jury orally in a criminal case is error; the charge being an invasion of the province of the jury, and clearly a charge upon the effect of the testimony which the court was without authority to give. Edmunds v. State,
The giving of the affirmative charge for the state in criminal cases, in view of the presumption of innocence which attends the accused, and the burden of proof resting upon the state, is of very doubtful propriety. Pate v. State,
Where there is an absence of any conflicting testimony to the fact of guilt, a charge of this character, predicated upon the belief of the testimony by the jury, may be given, but it should never be given where there is any evidence upon which a verdict of acquittal could be based, or where, as here, the facts in evidence pointing to guilt rest in inference only.
Reversed and remanded.