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382 So. 2d 1186

White v. State

Court of Criminal Appeals of Alabama

Decided April 22, 1980

Court of Criminal Appeals of Alabama · decided 1980-04-22

Cited by 2 later decisions — most recently January 1988

2 state decisions

Key passage — most relied on by later courts

““There, the defendant requested the court to charge the jury that ‘no inference or conclusion should be drawn by the jury from the fact that the defendant was not sworn and put on the stand as a witness in his own behalf, nor should this fact have any weight with the jury in reaching a verdict.’ “The Supreme Court in Thomas reversed, holding: “1) The charge in substance states the law applicable to the case; “2) It was a fact that the defendant failed to make the request to testify in the case and the charge should not be condemned as being abstract; “3) The charge cannot be condemned as being argumentative because it contained nothing more than the statement of an admitted fact and the law applicable under the statute [presently codified in § 12-21-220, Code of Alabama 1975].””

quoted by 1 later decision, including Popwell v. State

Relies on 368 So. 2d 310 - Perry v. State · 50 Ala. App. 403 - Swindle v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1980-04-22

View the full empirical analysis of this case →

TYSON, Judge.

¶1James Randy White was charged by indictment with the robbery of Zippy Mart of Alabama, Inc., a corporation, in the possession of Dennis Victory by taking $38.48-in lawful currency from his person and against his will by putting him in fear, etc. The jury found the appellant guilty as charged in the indictment and fixed punishment at forty years imprisonment. The trial court set sentence in accordance with this verdict.

¶2Because the oral charge of the trial court (R. pp. 126-138) did not cover the matter of the appellant’s right not to take the witness stand and testify at trial, we must reverse and remand this cause for a new trial. We, therefore, pretermit consideration of other assignments of error.

¶3I

¶4At the close of the trial court’s oral charge, appellant’s attorney tendered some thirty-five written requested charges, each of which was refused by the trial court (R. pp. 156-167). These charges were also called to the trial court’s attention in the motion for new trial, which was overruled by the trial court (R. p. 183). Refused charge number ten reads as follows (R. p. 159):

“The Court charges the jury that the fact that the Defendant did not testify in this case cannot be considered in determining the Defendant’s guilt or innocence. No inference or conclusion should be drawn by the jury from the fact that the De*1187fendant was not sworn and put on the witness stand as a witness in his own behalf, nor should this fact have any weight with the jury in reaching a verdict.”

¶5The above charge has been determined by this court to be a good charge requiring reversal if the same is not covered either by the oral charge of the trial court or by other given instructions. Swindle v. State, 50 Ala.App. 403, 279 So.2d 574 (1973). As in Swindle, the appellant did not testify; hence, the above charge is not abstract under the evidence in this cause.

¶6For the error shown, this cause is reversed and remanded on the authority of Perry v. State (Ala.), 368 So.2d 310 (1979); and Swindle, supra, for a new trial.

¶7Reversed and Remanded.

All the Judges concur.
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