Gordon v. State, 8 Div. 946

• Decision Date: 12 February 1959
• Docket Number: 8 Div. 946
• Citation: 110 So.2d 334,268 Ala. 517
• Parties: Honor B. GORDON v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 334

110 So.2d 334

268 Ala. 517

Honor B. GORDON v. STATE of Alabama.

8 Div. 946.

Supreme Court of Alabama.

Feb. 12, 1959.

John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for the petition.

W. A. Barnett, Florence, opposed.

The following charge was refused to defendant:

'(6.) Gentlemen of the Jury, I charge you that the legal presumption of innocence is to be regarded by the jury, in every case, a matter of evidence, to the benefit of which the accused is entitled, and, as a matter of evidence it attends the accused until his guilt, is, by the evidence, placed beyond a reasonable doubt.'

The oral charge of the court was in part as follows:

'The defendant in this case, like the defendant in every criminal case tried in our country, is presumed to be innocent until his guilt is proven from the evidence beyond a reasonable doubt and that presumption of evidence attended him when he entered upon trial and stays with him until, but only until, the State has met the burden of proof and has proven him guilty beyond a reasonable doubt and to a moral certainty.'

The following charge was given at defendant's request:

'(7.) The court charges the jury that the law presumes the defendant innocent of the indictment, and this presumption continues to go in favor of the defendant until the evidence convinces the jury, beyond a reasonable doubt of his guilt; and you cannot find the defendant guilty of any offense charged in the indictment until the evidence in the case satisfies you beyond all reasonable doubt of his guilt, and you cannot find the defendant guilty of any offense charged in the indictment until the evidence in the case satisfies you beyond all reasonable doubt of his guilt, and so long as you, or any of you, have a reasonable doubt as to the existence of any of the elements necessary to constitute the offense, you should not find the defendant guilty.'

PER CURIAM.

We are of opinion that reversible error is not made to appear in connection with the trial court's refusal to give defendant's written requested Charge No. 6. Although under our cases this charge does state a correct statement of the law, we are firmly convinced that the same rule of law was substantially and fairly given to the jury in the court's general charge and written Charge 7, given at the request of the defendant. Section 273, Title 7, Code 1940.

The judgment of the Court of Appeals is reversed.

Reversed and remanded.

LAWSON, SIMPSON, GOODWYN and MERRILL, JJ., concur.

LIVINGSTON, C. J., and STAKELY and COLEMAN, JJ., dissent.

COLEMAN, Justice (dissenting).

It is not open to question in this jurisdiction that in a criminal case, it is error to refuse Charge 6, for the refusal of which the Court of Appeals reversed the judgment of conviction, when that charge is not otherwise fairly and substantially covered in the instructions given to the jury. Amos v. State, 123 Ala. 50, 26 So. 524; Harris v. State, 123 Ala. 69, 26 So. 515; Mutual Life Ins. Co. of New York v. Maddox, 221 Ala. 292, 128 So. 383.

I agree with the Court of Appeals that Charge 6 was not covered by the charges given. The oral charge and the given charge instructed the jury that accused is presumed innocent and that he cannot be convicted until the evidence proves guilt beyond a reasonable doubt, but fail to instruct the jury that the presumption of innocence is to be regarded by the jury as a matter of evidence, etc. As was said in Coffin v. United States, 156 U.S. 432, 460, 461, 15 S.Ct. 394, 405, 39 L.Ed. 481:

'Concluding, then, that the presumption of innocence is evidence in favor of the accused, introduced by the law in his behalf, let us consider what is 'reasonable doubt.' It is, of necessity, the condition of mind produced by the proof resulting from the evidence in the cause. It is the result of the proof, not the proof itself, whereas the presumption of innocence is one of the instruments of proof, going to bring about the proof from which reasonable doubt arises; thus one is a cause, the other an effect. To say that the one is the equivalent of the other is therefore to say that legal evidence can be excluded from the jury, and that such exclusion may be cured by instructing them correctly in regard to the method by which they are required to reach their conclusion upon the proof actually before them; in other words, that the exclusion of an important element of...