Opinion
8 Div. 855.
June 29, 1929.
Appeal from Lawrence County Court; W. R. Jackson, Judge.
Riley Smith was convicted of failing to work the public road after notice, and he appeals. Reversed and remanded.
Almon Almon, of Decatur, for appellant.
The charge given for the state was erroneous in failing to instruct that the jury must believe the evidence beyond a reasonable doubt. Townsend v. State, 137 Ala. 91, 34 So. 382; Jackson v. State, 106 Ala. 12, 17 So. 333; Carr v. State, 104 Ala. 4, 16 So. 150; Shields v. State, 104 Ala. 36, 16 So. 85, 53 Am. St. Rep. 17; Harris v. State, 100 Ala. 129, 14 So. 538; Campbell v. State, 170 Ala. 55, 54 So. 107. The state failed to prove defendant was liable for road duty and had been duly warned. The affirmative charge requested for defendant should therefore have been given. Spear v. State, ante, 39, 120 So. 309.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
This appellant was tried and convicted upon an affidavit which charged him with the offense of failing to work the public road.
In order to sustain a conviction upon a charge of this character, the state is under the burden of showing by the evidence: (1) That the accused is liable to road duty; (2) that he willfully failed or refused to work the public road, either in person or by substitute; and (3) after having been legally warned so to do. The measure of proof, as in all criminal cases, being beyond a reasonable doubt.
In this case there is no evidence showing, or tending to show, that the appellant was liable to road duty, or that he had been legally warned to work the public road, and therefore the court erred in not giving at his request the affirmative charge requested in writing.
The court did give at the request of the state the following charge: "I charge you gentlemen of the jury that if you believe the evidence in this case, you must find the defendant guilty." There is no phase of this case which authorized the court to direct a verdict in favor of the state, for the reasons hereinabove stated. Moreover, the charge was bad, as it required the conviction of the defendant even if the jury may not have believed from the evidence beyond a reasonable doubt that he was guilty, which, as stated, is the measure of proof required in all criminal cases.
For the errors indicated the judgment of conviction from which this appeal was taken is reversed, and the cause remanded.
Reversed and remanded.