State v. Burns

Supreme Court of Alabama

Mar 5, 1976

SC 1670

Versions:327 So. 2d 927

295 Ala. 423

1976 Ala. LEXIS 1983

Lead Opinion

EMBRY, Justice.

WRIT DENIED.

HEFLIN, C. J., and ALMON, J., concur. BLOODWORTH and FAULKNER, JJ., concur specially.

Concurrence Opinion

BLOODWORTH, Justice,

(concurring specially.)

I concur to deny the writ because of the erroneous instructions given by the trial judge.

I must respectfully disagree with the opinion of the Court of Criminal Appeals insofar as it seems to imply that failure to instruct on “guilty scienter” constituted reversible error. The Supreme Court of Alabama has never reversed a trial judge, to my knowledge, for failing to instruct. When a trial judge’s instructions are not as full as defendant’s counsel desires, the remedy is to request instructions explaining defendant’s theory of the case. Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955).

Nor, are the references in the Court of Criminal Appeals’ opinion to the Alabama Rules of Civil Procedure apt. This Court specifically provided in Rule 1, A.R.C.P., that these rules apply only to civil cases. Therefore, any reference to Rule 51 is ill advised and misleading to bench and bar, in my judgment.

FAULKNER, J., concurs.