State v. Burns , 295 Ala. 423 ( 1976 )

327 So. 2d 927 (1976)

In re STATE of Alabama
v.
Robert Spencer BURNS.
Ex parte State of Alabama.

SC 1670.

Supreme Court of Alabama.

March 5, 1976.

William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.

EMBRY, Justice.

WRIT DENIED.

HEFLIN, C. J., and ALMON, J., concur.

BLOODWORTH and FAULKNER, JJ., concur specially.

BLOODWORTH, Justice. (concurring specially.)

I concur to deny the writ because of the erroneous instructions given by the trial judge.

I must respectfully disagree with the opinion of the Court of Criminal Appeals insofar as it seems to imply that failure to instruct on "guilty scienter" constituted reversible error. The Supreme Court of Alabama has never reversed a trial judge, to my knowledge, for failing to instruct. When a trial judge's instructions are not as full as defendant's counsel desires, the remedy is to request instructions explaining defendant's theory of the case. Smith v. State, 262 Ala. 584, 80 So. 2d 307 (1955).

Nor, are the references in the Court of Criminal Appeals' opinion to the Alabama Rules of Civil Procedure apt. This Court specifically provided in Rule 1, A.R.C.P., that these rules apply only to civil cases. Therefore, any reference to Rule 51 is ill advised and misleading to bench and bar, in my judgment.

FAULKNER, J., concurs.