McDougal v. StateMcDougal v. State
- Reporters:
- ,
- Before:
- Bowen
Howard McDougal was convicted for assault in the first degree and was sentenced to twenty years’ imprisonment. The assault occurred when the defendant, who was driving while intoxicated, ran a stop sign and collided with a car driven by Dwanah Lynn Stanley Bange. In such cases, assault in the second degree as defined by Alabama Code 1975, § 13A-6-21(a)(3) (recklessly causing serious physical injury to another by means of a deadly weapon or dangerous instrument) is a lesser included offense of assault in the first degree under § 13A-6-20(a)(3) (causing serious physical injury to another by recklessly engaging in conduct which creates a grave risk of death to another under circumstances manifesting extreme indifference to the value of human life). Manning v. State,
Here, requested instruction No. 1 was properly refused because the charge substituted the term “serious injury” for what should have been “serious physical injury.”
However, the defendant’s requested charge No. 2 defining second degree assault was virtually identical to the recommended instructions on assault in the second degree found in Alabama’s Pattern Jury Instructions: Criminal developed by the Alabama Bar Institute for Continuing Legal Education, § III-C-2.2(b) (1980). Defense counsel properly objected to the refusal of his requested instruction and to the trial court’s oral charge under A.R.'Cr. P.Temp. Rule 14. It is fundamental that “[a]n individual accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position.” Chavers v. State,
The judgment of the circuit court is reversed and this cause is remanded for further proceedings.
REVERSED AND REMANDED.