De Bardelaben v. State
| Decision Date | 12 May 1921 |
| Docket Number | 5 Div. 791 |
| Citation | 205 Ala. 658,88 So. 827 |
| Parties | DE BARDELABEN v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Elmore County; B.K. McMorris, Judge.
General De Bardelaben was convicted of murder, and appeals. Reversed and remanded.
p>Page George F. Smoot, of Wetumpka, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
We are of the opinion that the portions of the oral charge of the court to which exceptions were reserved, as disclosed by the statement of the case, were erroneous, and must work a reversal of the cause. In one aspect the charge was upon the effect of the evidence and, being given ex mero motu, comes within the inhibition of section 5362 of the Code of 1907. Gafford v. State, 125 Ala. 1, 28 So. 406; White v. State, 111 Ala. 92, 21 So. 330; Andrews v. State, 159 Ala. 14, 48 So. 858; McPherson v. State, 198 Ala. 5, 73 So. 387.
It has been held error for the court to so instruct the jury in a case of this character as to take from them the right and duty to ascertain by their verdict whether the defendant was guilty of murder in the first or second degree. This on account of the provisions of section 7087 of the Code of 1907. Gafford v. State, supra; McPherson v. State, supra. That portion of the oral charge constituting the exception last reserved, as above noted, is in effect an instruction to the jury that if the evidence for the state is to be believed, the degree of guilt will not be reduced below murder in the first degree, and therefore comes within the influence of these authorities.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
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Mitchell v. State
...by the court in refusing to do so is manifest. Section 7087, Code 1907; Brown v. State, 109 Ala. 70, 20 So. 103; De Bardelaben v. State, 205 Ala. 658, 88 So. 827; Warren v. State, 197 Ala. 313, 72 So. We cannot review the court and reverse this judgment of conviction for this clear error, b......
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Evers v. State, 5 Div. 819.
... ... 57, 34 So. 993, it was held that a charge which ... instructed the jury that the defendant was guilty of ... "murder or nothing" was error and was in violation ... of the statute, in that it was a charge upon the effect of ... the evidence and not requested in writing. In De ... Bardelaben v. State, 205 Ala. 658, 88 So. 827, a charge ... of the court given, ex mero motu, similar in import to the ... charge in the instant case, was held to be upon the effect of ... the evidence. In Baugh v. State, 218 Ala. 87, 117 ... So. 426, the degree of guilt was left to the jury, and it was ... ...