Opinion
1 Div. 902.
January 16, 1979. Rehearing Denied February 20, 1979.
Appeal from the Circuit Court, Mobile County, Ferrill D. McRae, J.
Chris N. Galanos and Neil L. Hanley, Thomas M. Haas and Beth Marietta, Mobile, for appellant.
William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen. for the State, appellee.
Appellant-defendant was indicted for assault and battery. The alleged victim was Ernest Cole Bohannon. The jury returned a verdict of guilty, but did not impose punishment. The trial court sentenced him to six months imprisonment. This appeal was timely taken.
Appellant asserts that the trial court committed reversible error in refusing his written charges (1) and (5). We quote these charges.
"DEFENDANT'S REQUESTED CHARGE NO. 1
"I CHARGE YOU, MEMBERS OF THE JURY, THAT ANY VERDICT YOU REACH MUST BE UNANIMOUS, AND IF ANY JUROR HAS A REASONABLE DOUBT OF THE DEFENDANT'S GUILT ARISING FROM ALL THE EVIDENCE A PART OF THE EVIDENCE, OR A LACK OF EVIDENCE, THEN THE DEFENDANT CANNOT BE CONVICTED.
"DEFENDANT'S REQUESTED CHARGE NO. 5
"IF YOU HAVE A REASONABLE DOUBT OF DEFENDANT'S GUILT GROWING OUT OF THE EVIDENCE OR ANY PART OF IT, YOU MUST ACQUIT HIM."
The trial court failed to charge the jury in its oral charge (which incorporated some written charges) that a reasonable doubt might arise from a part of the evidence. The refusal of the aforementioned charges constituted reversible error. Rakestraw v. State, 211 Ala. 535, 101 So. 181 (4); Bryant v. State, Ala.Cr.App., 348 So.2d 1136 (3), cert. den., Ala., 348 So.2d 1138; Richards v. State, Ala.Cr.App., 358 So.2d 488, cert. den., Ala., 358 So.2d 490.
We pretermit considering other asserted errors for the reason that like rulings may not recur during the next trial if any.
The judgment is reversed and the cause is remanded.
The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.
REVERSED AND REMANDED.
All the Judges concur.