Opinion
7 Div. 843.
October 4, 1928. Rehearing Denied November 22, 1928.
Harvey A. Emerson, of Anniston, for appellant.
Petitioner had a constitutional right to elect not to testify as a witness on the trial of his case. Const. 1901, § 6; Const. U.S. Amend. 5. The trial court invaded the right of petitioner in the oral charge. Davis v. State, 131 Ala. 10, 31 So. 569; Cooper v. State, 86 Ala. 610, 6 So. 110, 4 L.R.A. 766, 11 Am. St. Rep. 84; Potter v. State, 92 Ala. 40, 9 So. 402; Williams v. State, 98 Ala. 52, 13 So. 333; Shields v. State, 104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17; Banks v. State, 207 Ala. 179, 93 So. 293, 24 A. R. L. 1359; 16 C. J. 566. The right secured under section 6 cannot be waived by failure of defendant to reserve an exception to the action of the trial court. Wade v. State, 207 Ala. 1, 92 So. 101; Id., 207 Ala. 241, 92 So. 104; White v. State, 209 Ala. 546, 96 So. 709; Bankhead v. State, 124 Ala. 14, 26 So. 979; Kilgore v. State, 124 Ala. 24, 27 So. 4; Collins v. State, 88 Ala. 212, 7 So. 260; Bell v. State, 44 Ala. 393; Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The case of Wade v. State, 207 Ala. 1, 92 So. 101 (see, also, Wade v. State, 207 Ala. 241, 92 So. 104), is not applicable to the situation here presented. That authority dealt with a constitutional right that could not be waived, and, as pointed out in White v. State, 209 Ala. 546, 96 So. 709, an infringement of which by the order of the court affirmatively appeared upon the record.
In the instant case petitioner had the constitutional right not to be compelled to give evidence against himself, but this right could be waived by taking the stand and becoming a witness. The statement of the court in the oral charge that defendant did not deny the charge was but an indirect infringement of his constitutional right, and, to present the same for consideration in an appellate tribunal, we are of the opinion an exception was necessary to be reserved.
The writ is denied.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.