The appellant, Orlander Taylor, was convicted of taking immoral, improper or indecent liberties with a child under sixteen years, in violation of Section 326 (2) Title 14, Code of Alabama 1940.
The trial court charged the jury as follows:
"Gentlemen, this jury is not a pardoning board. If you are satisfied beyond a reasonable doubt that this defendant did, on the occasion complained of, at the time actually take or attempt to take these indecent liberties with that child, and that child was under sixteen years of age at the time, and he had the intent at the time of so doing, to so arouse or gratify the passions, the lust or sexual desires of himself, or her, or both of them, then you should find the defendant guilty, and that irrespective of the fact that you might not like the law which is on the books.
"You would not be justified in pardoning a person who is being tried for a crime, if you are satisfied beyond a reasonable doubt from the evidence that that person is guilty. That would be left for some other board, or body, or persons to do and not for the jury. But, if you are not satisfied, as I say, from the evidence, that the defendant is guilty as charged in this indictment, then you should acquit him."
We are of opinion that the court's reference to a board, body or persons with pardoning power requires a reversal of the judgment under the authority of McCray v. State, 261 Ala. 275,74 So.2d 491, and Lawley v. State, 264 Ala. 283, 87 So.2d 433.
Reversed and remanded.
JOHNSON, J., dissents.