Bayne v. State
| Decision Date | 09 June 1978 |
| Docket Number | No. 77-40,77-40 |
| Citation | 375 So.2d 1237 |
| Parties | Ex parte State of Alabama ex rel. Attorney General. (In re: Roy L. BAYNE v. STATE). . On Rehearing |
| Court | Alabama Supreme Court |
William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State, petitioner.
James M. Fullan, Jr., Birmingham, for respondent.
ON REHEARING
Original opinion withdrawn.
Roy Lee Bayne was tried and convicted of assault with intent to murder. The Court of Criminal Appeals, 375 So.2d 1236, reversed and remanded the case because the trial court refused to give the following requested charge:
We granted the state's petition for certiorari on original deliverance.
The issues in this case are identical to those raised in Lamar v. State, 356 So.2d 680 (Ala.1977). In Lamar, we held that the refusal to give the aforementioned charge was not error where the principle sought to be covered was substantially and fairly explained to the jury by the trial court in its oral charge. See also: Kirksey v. State, 291 Ala. 102, 278 So.2d 363 (1973).
In the instant case, the trial judge charged the jury as follows:
". . . the law presumes that every man and every woman and every child who is charged with a crime is innocent and that that presumption of innocence follows the defendant . . . until the State By its evidence which comes to you from the witness stand proves to you . . . that the defendant is guilty as charged in the indictment beyond a reasonable doubt and to a moral certainty." (Emphasis Added)
This charge is almost identical to the charge in Lamar. It fairly explains to the jury the state's burden of proof and limits the jury's consideration to the testimony which came from the witness stand. Bayne contends that, in this case, the prosecution made certain assertions in closing argument which necessitated a specific charge that remarks of counsel are not evidence for the jury's consideration.
Bayne's contention rests upon the following colloquy:
Counsel should be given wide latitude in arguing to the jury; and only where the defendant is prejudiced by the state's argument is reversal mandated.
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Kuenzel v. State
...in arguing to the jury; and only where the defendant is prejudiced by the State's argument is reversal mandated." Bayne v. State, 375 So.2d 1237, 1238 (Ala.1978). The test, where there has been no objection, is whether the error "has or probably has adversely affected the substantial rights......
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Carroll v. State
...in arguing to the jury; and only where the defendant is prejudiced by the state's argument is reversal mandated." Bayne v. State, 375 So.2d 1237, 1238 (Ala.1978). "If it can be said with fair assurance 'that the error did not influence the jury, or had but very slight effect, the verdict an......
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...in arguing to the jury; and only where the defendant is prejudiced by the state's argument is reversal mandated.’ Bayne v. State, 375 So.2d 1237, 1238 (Ala.1978). ‘If it can be said with fair assurance “that the error did not influence the jury, or had but very slight effect, the verdict an......
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Adams v. State
...fled the area on the day after, rather than on the day of, the commission of the crimes. Our Supreme Court held in Bayne v. State, 375 So.2d 1237, 1238 (Ala.1978), that "[c]ounsel should be given wide latitude in arguing to the jury; and only where the defendant is prejudiced by the state's......