Opinion
3 Div. 95.
September 12, 1972. Rehearing Denied October 10, 1972.
Appeal from the Circuit Court, Montgomery County, Richard P. Emmet, J.
Elno A. Smith, Jr., Montgomery, for appellant.
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
Decoying a child: sentence, one year hard labor for the county. Code 1940, T. 14, § 5.
At the end of the transcription of the testimony (R. 63) we find:
"(Whereupon, Argument was presented to the Jury by respective Counsel.)"
We quote from Lane v. State, 85 Ala. 11, 4 So. 730:
"The defendant presented the following written charge, and asked that it be given to the jury: 'The state must prove its charge, and prove it beyond a reasonable doubt, by evidence. The assertions of counsel are not evidence.' This charge ought to have been given. Coleman v. State, 59 Ala. 52; Tatum v. State, 63 Ala. 147."
The appellant's third charge refused reads:
"The State must prove its charge, and prove it beyond a reasonable doubt by the evidence. The assertions of counsel are not evidence."
It follows that the judgment below is due to be reversed and the cause remanded for new trial.
Reversed and remanded.
All the Judges concur.