Opinion
7 Div. 294.
June 21, 1927.
Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.
George Wade and another were convicted of murder in the second degree, and they appeal. Reversed and remanded.
Charge 12, refused to defendants, is as follows:
"(12) The court charges the jury that the only foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence, beyond a reasonable doubt and to a moral certainty, that the defendant is guilty as charged in the indictment, to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt, and, if the prosecution has failed to furnish such measure of proof, and to so impress the minds of the jury of his guilt, they should find him not guilty."
Knox, Dixon, Sims Bingham, of Talladega, and Harwell, Fairman Barrett, of Atlanta, Ga., for appellants.
Requested charge 12 is a correct statement of law, and should have been given. Veasey v. State, 20 Ala. App. 478, 103 So. 67; Motes v. State, 20 Ala. App. 195, 101 So. 286. It was error for the court to place the witness Alvin Wade under rule. Const. 1901, § 6; Wade v. State, 207 Ala. 241, 92 So. 104; Ryan v. Couch, 66 Ala. 248; People v. Ong Git, 23 Cal.App. 148, 137 P. 285; Reagan v. U.S. (C.C.A.) 202 F. 488, 44 L.R.A. (N.S.) 585.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The refusal of written charge No. 12 was prejudicial error. Motes v. State, 20 Ala. App. 195, 101 So. 286.
The appellants, father and son, it appears, were confined a considerable length of time in jail previous to and up to the day of trial. Their son and brother, Alvin Wade, who does not appear to have been in the state when the offense for the alleged commission of which his relatives were tried was committed, was, on the day of the trial, subpœnaed as a witness for the state, and upon the state's request placed under the rule. The defendants objected to this, stating to the court that Alvin Wade had been active in looking after their defense, and was familiar with the facts, and that his advice and presence was necessary to enable their counsel to properly present their case. Alvin Wade was not a witness for the defendants and he was never used as a witness for the state. We think the action of the court in excluding him from the courtroom during the trial and thereby denying the defendants, through their attorneys, the benefit of his suggestions as to the proper examination of witnesses, etc., constituted an abuse of the trial court's discretion in such matters.
The other questions raised on this appeal involve only elementary principles of law. No good purpose would be served by our discussing them. On another trial they will not likely arise.
Reversed and remanded.