Opinion
6 Div. 662.
September 1, 1959. Rehearing Denied September 15, 1959.
Appeal from the Circuit Court, Tuscaloosa County, W.C. Warren, J.
A.K. Callahan and Geo. W. Nichols, Jr., Tuscaloosa, for appellant.
Charge 11 states a correct proposition of law and should have been given. Veasey v. State, 20 Ala. App. 478, 103 So. 67; Sanford v. State, 37 Ala. App. 603, 75 So.2d 109; Holtbrook v. State, 38 Ala. App. 77, 76 So.2d 349. Charge 8 is a correct charge and its refusal was error. Walker v. State, 117 Ala. 42, 23 So. 149; Willis v. State, 134 Ala. 429, 33 So. 226; Carter v. State, 145 Ala. 679, 40 So. 82.
MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
When substantially the same instructions are given in other charges, or the oral charge, there is no error in refusal of charges of like effect in varying phraseology. Nelson v. State, 35 Ala. App. 1, 46 So.2d 231; Chambers v. State, 264 Ala. 8, 84 So.2d 342.
This is an appeal from a judgment of conviction of the offense of assault with intent to murder.
The court refused to give to the jury charges 11 and 8, requested by the defendant in writing.
Charge 11 is as follows:
"The Court charges the Jury that, if the Jury, upon considering all the evidence have a reasonable doubt about the defendant's guilt, arising out of any part of the evidence, they should find him not guilty."
This charge was not substantially covered by the court's oral charge, nor by the given charges. Its refusal constituted reversible error. Sanford v. State, 37 Ala. App. 603, 75 So.2d 109, certiorari denied 261 Ala. 699, 75 So.2d 85; Holtbrook v. State, 38 Ala. App. 77, 76 So.2d 349.
Charge 8 reads:
"The Court charges the Jury that if the evidence is not so convincing as to lead the minds of the Jury to the conclusion that he is guilty, they must find him not guilty."
The Supreme Court has stated that this charge asserts a correct proposition of law and that its refusal is error. Walker v. State, 117 Ala. 42, 23 So. 149; Willis v. State, 134 Ala. 429, 33 So. 226; Carter v. State, 145 Ala. 679, 40 So. 82.
Other points urged in brief of counsel for appellant will not be discussed, since they probably will not arise in the event of another trial of this cause.
The judgment is ordered reversed, and the cause is remanded.
Reversed and remanded.