Windle v. State, 3 Div. 483

• Decision Date: 20 April 1976
• Docket Number: 3 Div. 483
• Parties: Matthew WINDLE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 420

331 So.2d 420

57 Ala.App. 665

Matthew WINDLE v. STATE.

3 Div. 483.

Court of Criminal Appeals of Alabama.

April 20, 1976.

George H. B. Mathews, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State, appellee.

LEIGH M. CLARK, Supernumerary Circuit Judge.

The only question presented by appellant is whether the judgment of conviction should be reversed by reason of the omission from the court's oral charge (to which there was neither an objection nor an exception) of the principle that the presumption of innocence attends defendant As a matter of evidence.

Appellant leans heavily upon Davis v. State, 284 Ala. 135, 222 So.2d 719 (1969), in which it was held that the refusal to give a written charge that defendant '. . . is presumed by law to be innocent, and that presumption of innocence attends him, as a matter of evidence . . .' was reversible error, in the absence of a covering of the principle by some portion of the court's oral charge or by some given written charge.

Neither in the oral charge nor in any written charge given in this case was it stated that the presumption of innocence attends a defendant As a matter of evidence.

Appellant cites Jones v. U.S., 113 U.S.App.D.C. 352, 308 F.2d 307 (1962); U.S. v. Levy, 153 F.2d 995 (3d Cir. 1946); Findley v. U.S., 362 F.2d 921 (10th Cir. 1966), in support of his contention that even in the absence of a request for a particular instruction and in the absence of any objection or exception to the court's oral charge, there can be an omission of such important principles as to necessitate a reversal. In Jones and Findley, there was a failure to make it clear to the jury that the burden of proof was upon the state to convince the jury beyond a reasonable doubt of the existence of a particular essential element of the crime charged. Although the trial court charged generally on the necessity for proof of the crime charged beyond a reasonable doubt, the charge as a whole could have reasonably been construed to the effect that it was not necessary to prove beyond a reasonable doubt the existence of one particular essential element thereof. In U.S. v. Levy, supra, it was said:

'The case appears to have been tried to the jury upon the inadvertent assumption of both court and counsel that if the whiskey was sold above a certain price the sale would be illegal. But the basis for the illegality was never given to the jury.'

The crime charged in the instant case was murder in the first degree. The defendant was convicted of murder in the second degree. The court charged fully and correctly as to the elements of murder in both degrees and manslaughter in both degrees. The court stated in its oral charge:

'Now, we will move to the questions of law that are applicable in this factual situation this defendant is charged in an indictment; a document I display to you at this time. It is a written document. This written document is nothing more than the form used to record a charge against a defendant. It is not evidence for or against anyone. And when someone is charged with an indictment with a criminal offense, they are immediately presumed to be innocent. Everyone charged in our system with the commission of a crime is presumed innocent of that crime. That presumption of innocence places, therefore, upon the prosecuting authorities--the people bringing the charge, which in this case is the State of Alabama claiming that this defendant is guilty of the offense of...