It is first contended that defendant was convicted upon the uncorroborated testimony of an accomplice. If this were true, the judgment in this case would be reversed on authority of Alexander v. State, 20 Ala. App. 432, 102 So. 597. In this case, however, the testimony of the accomplice is corroborated by the testimony of the state witnesses Sikes and Ellis, who were not accomplices, and, while the testimony of Sikes and Ellis may not have been sufficient when considered alone to have sustained a conviction, their testimony was corroborative of the testimony of the accomplice so as to sustain the verdict of conviction.
The defendant requested the court in writing to give certain instructions to the jury, which instructions are embraced in charges A, C, 3 1/2, 4, 5, 6, 7, 9, and D, and upon each was written the word "given" and signed by the judge as is provided for by section 9509 of the Code of 1923. For some reason not shown by the record these charges were read to the jury by the presiding judge, but (with the single exception of charge D) none of these charges were taken by the jury with them on retirement, nor were these charges with the jury during their deliberation. This fact was brought to the attention of the court by motion for new trial, and is admitted to be true. The statute (Code, § 9509, supra) is imperative to the effect that such charges "must be taken by the jury with them on retirement." Such is the plain mandate of the statute, and whatever may be our views as to what it ought to be, we see no escape from the conclusion that, having failed in this particular, the court should have granted the motion for a new trial. On this question Coleman, J., speaking for the court, said:
"What we do decide is that special charges requested in writing and 'given' must be taken out by the jury." Orr v. State, 117 Ala. 69, 72, 23 So. 696.
When there is a plain mandate of the statute, a failure to observe such cannot be said as matter of law to be error without injury. The Legislature has fixed it as being a necessary part of a trial before a jury, and the courts must abide it.
The judgment must be reversed, and the cause remanded.
Reversed and remanded.