Opinion
1 Div. 127.
April 20, 1971.
Appeal from the Circuit Court, Monroe County, R. E. L. Key, J.
Ian F. Gaston, Mobile, for appellant.
In the absence of a specific written request on the part of the State, it is error for the court to give the State the affirmative charge with hypothesis. Code of Alabama 1940, as recompiled 1958, Title 7, Section 270; Roberts v. State, 36 Ala. App. 491, 59 So.2d 821; Thrash v. State, 23 Ala. App. 433, 126 So. 606; Brown v. State, 15 Ala. App. 568, 74 So. 394. The presumption of innocence is a matter of evidence to the benefit of which a criminal defendant is entitled and the Court's failure to so charge a jury, especially when requested to do so in writing, requires reversal. Davis v. State, 284 Ala. 135, 222 So.2d 719; Guenther v. State, 282 Ala. 620, 213 So.2d 679; Id. 393 U.S. 1107, 89 S.Ct. 916, 21 L.Ed.2d 803; Pate v. State, 42 Ala. App. 334, 163 So.2d 645.
MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State.
Where defendant has failed to make any proof of all essential features of his cause of action, and all evidence is in, it is not prejudicial error for court, without written request, to direct verdict without hypothesis. Code of Alabama 1940, Title 7, Section 270; Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77; Coshatt v. State, 37 Ala. App. 422, 69 So.2d 877. Presumption of innocence in favor of accused is evidence which attends accused until other evidence is presented sufficient in judgment of trial of facts to overcome primary presumptions. Davis v. State, 284 Ala. 135, 222 So.2d 719.
This appellant stands convicted of a violation of Section 106, Title 14, Code of Alabama, 1940.
The state presented evidence tending to support the allegations of the indictment. No evidence was offered in defendant's behalf.
The court, ex mero motu, instructed the jury:
"The court charges the jury if you believe the evidence in this case beyond a reasonable doubt, you must convict this defendant."
Section 270, Title 7, Code, supra, expressly provides that the court shall not charge upon the effect of the testimony unless requested to do so by one of the parties. Such charge must be requested in writing. Section 273, Title 7, Code. See also, Thrash v. State, 23 Ala. App. 433, 126 So. 606; Brasher v. State, 21 Ala. App. 360, 108 So. 266. The court's action was reversible error.
Appellant also argues that the court erred in refusing requested charge 5, which reads:
"I charge you, members of the jury, that the legal presumption of innocence is to be regarded by the Jury in every case as a matter of evidence, to the benefit of which the accused is entitled and, as a matter of evidence, it attends the accused until his guilt is, by the evidence, placed beyond a reasonable doubt."
In Mutual Life Insurance Co. v. Maddox, 221 Ala. 292, 128 So. 383, Justice Foster stated that where the state is entitled to the general affirmative charge, a question unnecessary for our determination, the presumption of innocence "has never been held sufficient of itself to create a conflict, or conflicting inferences, when the evidence did not otherwise show such a conflict."
Reversed and remanded.