Code of Alabama
Ala. Code § 13A-5-41 (2026)
Lesser Included Offenses.
✓ official Alabama Legislature (ALISON) text, current July 2026
Subject to the provisions of Section 13A-1-9(b), the jury may find a defendant indicted for a crime defined in Section 13A-5-40(a) not guilty of the capital offense but guilty of a lesser included offense or offenses. Lesser included offenses shall be defined as provided in Section 13A-1-9(a), and when there is a rational basis for such a verdict, include but are not limited to, murder as defined in Section 13A-6-2(a), and the accompanying other felony, if any, in the provision of Section 13A-5-40(a) upon which the indictment is based.
(Acts 1981, No. 81-178, p. 203, §3; Acts 1982, No. 82-567, p. 945, §1.)
Notes of Decisions
Cited in 14
cases, 1983–2011 · leading case: Ex Parte Kennedy, 472 So. 2d 1106 (Ala. 1985).
Ex Parte Kennedy, 472 So. 2d 1106 (Ala. 1985). “NOTES [1] While not applicable here, it is noted that Code 1975, § 13A-5-41, now provides as follows: "Subject to the provisions of section 13A-1-9(b), the jury may find a defendant indicted for a crime defined in section 13A-5-40(a) not guilty of the capital offense but guilty…”
Coral v. State, 628 So. 2d 954 (Ala. Crim. App. 1992). “Section 13A-5-41 provides as follows: "Subject to the provisions of section 13A-1-9(b), the jury may find a defendant indicted for a crime defined in section 13A-5-40(a) not guilty of the capital offense but guilty of a lesser included offense or offenses.”
Lee v. State, 898 So. 2d 790 (Ala. Crim. App. 2003). “1983) (`The trial court's instruction to this effect, that the jury should not consider the lesser included offenses unless it found the appellant "not guilty" of the capital offense was in accordance with and justified by [§ 13A-5-41]'), affirmed, 456 So.”
Ex Parte Peterson, 890 So. 2d 990 (Ala. 2004). “Ala.Code 1975, § 13A-5-41; Ex parte Dorsey, 881 So.”
Broadnax v. State, 825 So. 2d 134 (Ala. Crim. App. 2000). “Section 13A-5-41, Ala.Code 1975, states: "Subject to the provisions of 13A-1-9(b), the jury may find a defendant indicted for a crime defined in 13A-5-40(a), not guilty of the capital offense but guilty of a lesser included offense or offenses.”
Sale v. State, 8 So. 3d 330 (Ala. Crim. App. 2008). “Michael Sale was convicted of the murder of his wife, Lynn Sale, made capital because it occurred during the course of kidnapping in the first degree, a violation of § 13A-5-41(l), Ala.Code 1975. After the penalty phase of Sale’s trial, the jury unanimously recommended that he…”
Dorsey v. State, 881 So. 2d 460 (Ala. Crim. App. 2002). “Section 13A-5-41; J. Colquitt, The Death Penalty Laws of Alabama, 33 Ala.”
Lindsey v. State, 456 So. 2d 383 (Ala. Crim. App. 1983). “Section 13A-5-41, Code of Alabama 1975, states that "the jury may find a defendant .”
Howard v. State, 85 So. 3d 1054 (Ala. 2011). “Subject to the provisions of Section 13A-5-41, murder as defined in Section 13A-6-2(a)(2) and (3), as well as murder as defined in Section 13A-6-2(a)(1), may be a lesser included offense of the capital offenses defined in subsection (a) of this section.”
Apicella v. State, 809 So. 2d 841 (Ala. Crim. App. 2000). “) Section 13A-5-41, Ala.Code 1975, states: "Subject to the provisions of § 13A-1-9(b), the jury may find a defendant indicted for a crime defined in § 13A-5-40(a), not guilty of the capital offense but guilty of a lesser included offense or offenses.”
Sean Travis Howard v. State of Alabama., 85 So. 3d 1048 (Ala. Crim. App. 2009). “Subject to the provisions of Section 13A-5-41, murder as defined in Section 13A-6-2(a)(2) and (3), as well as murder as defined in Section 13A-6-2(a)(l), may be a lesser included offense of the capital offenses defined in subsection (a) of this section.”
D.D.A. v. State, 650 So. 2d 571 (Ala. Crim. App. 1994). “Subject to the provisions of Section 13A-5-41 [authorizing a jury to find a defendant charged with a capital offense guilty of a lesser included offense], murder as defined in Section 13A-6-2(a)(2) [reckless murder] and (3) [felony murder], as well as murder as defined in…”
— Ala. Code § 13A-5-41(l) — 1 case
Sale v. State, 8 So. 3d 330 (Ala. Crim. App. 2008). “Michael Sale was convicted of the murder of his wife, Lynn Sale, made capital because it occurred during the course of kidnapping in the first degree, a violation of § 13A-5-41(l), Ala.Code 1975. After the penalty phase of Sale’s trial, the jury unanimously recommended that he…”
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