Burk v. State

ANDERSON, C. J.

Charge 8, refused the defendant, states the law, and should have been given, and, the Court of Appeals improperly held that its refusal by the trial court was not error.' Amos v. State, 123 Ala. 50 , 26 So. 524 ; Bryant v. State, 116 Ala. 446 , 23 So. 40 ; Newsom v. State, 107 Ala. 133 , 18 So. 206 ; Neilson v. State, 40 So. 221 .

1

The other portions of the opinion of the Court of Appeals attacked by the petitioner are either free from error, or are not reviewable by this court under the often cited *656 and approved case of Postal Tel. Co. v. Minderhout, 195 Ala. 420 , 71 So. 91 .

The majority think that the writ should be denied., They concede the soundness of the legal proposition asserted in charge 8, but think it wrong in requiring the state to overcome the presumption of innocence alone; that is, the presumption continues until overcome by the evidence, whether produced by the state, or defendant. They also concede that the words to which they object in charge 8 were, in effect, embraced in so much of charge 8 in the case of Newsom v. State, 107 Ala. 133 , 18 So. 206 , as was approved in the opinion in said case, but, while not complaining of the legal principle laid down in the opinion, think that said ease should be qualified to the extent that the refusal of a charge as here involved was reversible error. The writer thinks that the charge here involved was, in effect, approved in the Newsom Case, supra, which was decided over 30 years ago, and has been often cited and approved in numerous decisions.

Writ denied.

All Justices concur, except ANDERSON, O. J., who thinks the writ should be awarded.

1

Reported in full in the Southern Reporter; not reported in full in 146 Ala. 683 .