130 So. 2d 355 | Ala. Ct. App. | 1961
Appellant was convicted of the offense of robbery and was sentenced to the penitentiary for a term of ten years.
The question of the sufficiency of the evidence to justify the verdict, not having been raised in the trial court, is not presented for our review. See 7 Ala. Digest Criminal Law, 1036(8) for numerous cases.
In Turner v. State,
"In every criminal case the defendant is clothed with the presumption of innocence, an abiding presumption to be overcome only by evidence of guilt removing all reasonable doubt. This presumption, and burden of proof cast upon the state, should be fully presented in the oral charge. Special charges in varying language are usually given at defendant's request."
Here there was no charge, oral or written, touching the presumption of innocence with which the defendant was clothed. Furthermore, the oral charge as to the burden of proof is misleading in its tendencies. The oral charge is as follows:
"Now, gentlemen, this defendant is being charged with a criminal offense. The burden is first upon the State to convince you and each of you separately and severally and as a unit as to the material allegations of the indictment. You will have the indictment before you when you go into the jury room for your deliberations. The State, as I said, must convince you and each of you beyond all reasonable doubt — you notice that I use the word 'reasonable' — that is a doubt for which you in your mind can arrive at a proper reason for stating as you do, or for seeing the case and considering the facts as you do. I do not say, 'beyond all doubt.' " (Emphasis supplied.)
In Parker v. State,
Defendant's requested Charge 18, refused by the court, is a copy of the charge held good in the above cases, except that the words we have set out in parentheses are omitted from the charge. "The court charges the jury that the law presumes the defendant innocent of (the commission of the offense charged in) the indictment, * * *."
A trial judge is not justified in refusing a charge asserting a correct principle of law merely because it is elliptical, unless the omission of words obscures its meaning and tends to mislead a person of common understanding. Mitchell v. State,
It will be further noted that in Gordon v. State,
We are of opinion the trial court committed reversible error in refusing to give Charge 18, requested in writing by defendant.
Reversed and remanded.