Ott v. State

Section 5362 of the Code of 1907 expressly provides that the trial court shall not charge upon the effect of the testimony, unless required to do so by one of the parties. On this appeal but one question is insisted upon as error, and this relates to exceptions which were reserved to the oral charge of the court, involving the statute above mentioned. The court in its oral charge stated that:

"Under the facts as testified to in this case you can return but one verdict, and that is a verdict of guilty as charged in the indictment."

The record shows that:

"After the jury had retired and entered upon its deliberations, they were again brought into the open courtroom, whereupon the following took place:

"The court said: ``Gentlemen of the jury, at the time I charged you, I overlooked the fact that there were two counts in the complaint. Your verdict would be: "We, the jury, find the defendant guilty as charged in the first count of the complaint." ' "

To these utterances of the court the defendant reserved exceptions, and these exceptions must of necessity be sustained, as these portions of the court's charge were upon the effect of the testimony and violative of the terms of the statute. Section 5362 of the Code 1907, supra.

The oral charge as a whole was practically upon the effect of the testimony, and invasive of the province of the jury. See authorities collated as a footnote to section 5362, Code 1907, supra; also Edmunds v. State, 16 Ala. App. 182, 76 So. 466.

Reversed and remanded.