White v. State, 382 So. 2d 1186

White v. State

382 So. 2d 1186 | Ala. Crim. App. | 1980

James Randy White was charged by indictment with the robbery of Zippy Mart of Alabama, Inc., a corporation, in the possession of Dennis Victory by taking $38.48 in lawful currency from his person and against his will by putting him in fear, etc. The jury found the appellant guilty as charged in the indictment and fixed punishment at forty years imprisonment. The trial court set sentence in accordance with this verdict.

Because the oral charge of the trial court (R. pp. 126-138) did not cover the matter of the appellant's right not to take the witness stand and testify at trial, we must reverse and remand this cause for a new trial. We, therefore, pretermit consideration of other assignments of error.

I At the close of the trial court's oral charge, appellant's attorney tendered some thirty-five written requested charges, each of which was refused by the trial court (R. pp. 156-167). These charges were also called to the trial court's attention in the motion for new trial, which was overruled by the trial court (R. p. 183). Refused charge number ten reads as follows (R. p. 159):

"The Court charges the jury that the fact that the Defendant did not testify in this case cannot be considered in determining the Defendant's guilt or innocence. No inference or conclusion should be drawn by the jury from the fact that the Defendant *1187 was not sworn and put on the witness stand as a witness in his own behalf, nor should this fact have any weight with the jury in reaching a verdict."

The above charge has been determined by this court to be a good charge requiring reversal if the same is not covered either by the oral charge of the trial court or by other given instructions. Swindle v. State, 50 Ala. App. 403, 279 So.2d 574 (1973). As in Swindle, the appellant did not testify; hence, the above charge is not abstract under the evidence in this cause.

For the error shown, this cause is reversed and remanded on the authority of Perry v. State (Ala.), 368 So.2d 310 (1979); and Swindle, supra, for a new trial.

Reversed and Remanded.

All the Judges concur.