On Rehearing. Learned counsel representing the State belatedly seeks to sustain the trial court's "caution" instruction noted above by citing certain authorities from other jurisdictions. Although the argument is still unconvincing that we should abandon the clear rule of our decisions (Spencer v. State, 50 Ala. 124,125; Pate v. State, 94 Ala. 14, 10 So. 665; Johnson v. State,24 Ala. App. 291, 135 So. 592; Certiorari denied 223 Ala. 332,135 So. 592; Domingus v. State, 94 Ala. 9, 13, 11 So. 190), this brief response is due.
The cited text in 22 C.J.S., Criminal Law, § 68, p. 133, "that great caution is necessary in the application of this doctrine", is also found in 16 C.J., p. 108, and was originally carried by this annotator in 21 Cyc., p. 672. Basis for this text appears in Note 68 of Cyc., citing some early decisions mostly from California. We have not taken time to investigate the others (some of which do not support the text) to ascertain whether or not the rule is still adhered to in those jurisdictions, but our study reveals that California has since denounced, as improper, instructions of this character. Noteworthy is People v. Galloway, 202 Cal. 81, 259 P. 332, 337, cited in our original opinion. In condemning the action of the trial court in admonishing the jury to consider the defense of drunkenness with "great caution", that court observed: "In the case at bar the actual intoxication of the defendant seems practically certain and up to and within an hour of the time of the tragedy is practically conceded. It rests not upon the testimony of the defendant alone, but upon the testimony of disinterested witnesses. This, too, [as here, we interpolate] was practically his sole claim for a reduction of the degree of crime. The above instruction therefore should not have been given."
An Indiana case (by the way, cited in said Note 68 of Cyc.) is expressive of our view: "It is sufficient to say that, as at present constituted, the court does not regard with favor any statements by the trial court which are designed to cast discredit or suspicion upon any defense which is recognized by the law as legitimate, and which an accused person is making in apparent good faith. In this respect, we are unable to appreciate any well-grounted distinction between the defense of insanity [there allegedly caused by excessive drinking], self defense or alibi." (Our interp.) Aszman v. State of Indiana,123 Ind. 347, 24 N.E. 123, 127, 8 L.R.A. 38. The able Chief Justice delivering that opinion then points out that, although in some jurisdictions where judges are permitted to comment upon the weight or value of the evidence it has been held proper to give such cautionary charges to the jury concerning these defense, the rule does not apply in Indiana — nor, we say, in Alabama.
But, without further attempting to reconcile or distinguish decisions elsewhere, certain it is that we cannot affirm as correct the instruction here, in view of our own decisions. The rationale of the cited cases, and others of similar import, is that any legitimate defense is authorized and entitled to fair consideration by the jury, and no instruction of the court should be given to disparage it. To do so is "obviously unfair" to the accused and is invasive of his "constitutional" right (Spencer v. State, supra), and if the jury under the evidence is authorized to reach a given conclusion at all, it is error to caution them to "lean away from" or "be reluctant" to reach that conclusion. Domingus v. State, supra. True, these and the other listed cases were dealing with other defenses, but it would require superior legalistic legerdemain to effect, a distinguishment between this and other legitimate defenses, meanwhile attempting to lay down a fundamental rule of general applicability. The legal as well as logical incongruity thereof is manifest.
We adhere to our original views.
Rehearing denied. *Page 394