On Rehearing. Upon this application for rehearing counsel for appellant insists that the opinions heretofore promulgated in this case are *Page 538 erroneous in several instances, and in the application renews and reiterates former insistences of error upon the original submission.
First: It is again contended that the act of the legislature under which the indictment was laid is unconstitutional. Upon this question we adhere to what has been said in the original and concurring opinions on this question, hence refrain from further discussion in this connection.
Second: It is strenuously insisted, and ably argued, that error prevailed in the action of the court in refusing written charge 3, to defendant. Said charge is as follows: "If there is a probability of defendant's innocence arising out of the evidence, you should acquit him." In our opinion as to this, and other refused charges, we stated: "In submitting this case to the jury, the trial judge delivered a full and comprehensive oral charge; and, in addition thereto, gave at the request of the defendant several written special charges. Thus, we think, every phase of pertinent law involved in this case, was properly given to the jury as instruction by the court. A number of special written charges were refused to defendant, several of which have been disposed of by what has been said hereinabove. We see no necessity to discuss in detail the remaining refused special written charges. We have, however, carefully examined all of them and are of the opinion that the court's oral charge, coupled with the given charges at request of defendant, fairly and substantially covered such of the refused charges that properly stated the law of this case." In the foregoing, especially as to refused charge 3, we are clearly sustained by the fact the court gave at request of defendant written charge 18, which reads as follows: "I charge you that the only foundation for a verdict of guilt in this case is that the entire jury shall believe from the evidence, beyond a reasonable doubt and to a moral certainty, that the defendant, Fred Newman, is guilty as charged in the indictment, to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt, and, if the prosecution has failed to furnish such measure of proof, and to so impress the minds of the jury of his guilt, you should find him not guilty." This last quoted charge, in our opinion, not only fairly and substantially covered the proposition of law contained in charge 3, but as will be noted the charge (18) was highly more favorable to defendant than the requested charge. The foregoing is conclusive of this insistence. However, while said charge has met the approval of the appellate courts, in many instances, as stated by counsel, there are decisions which hold that the charge is faulty and properly refused, for that, "it justifies an acquittal on a probability of innocence, while it must be a reasonable probability of innocence arising involuntarily out of the evidence, or some part thereof, after a consideration of the whole by the jury." Buckhanon v. State,12 Ala. App. 36, 67 So. 718; Hayes v. State, 21 Ala. App. 615,110 So. 696; Adams v. State, 21 Ala. App. 15, 105 So. 714, certiorari denied In re Adams, 213 Ala. 570, 105 So. 715, 716; McClain v. State, 182 Ala. 67, 81, 62 So. 241. In Edwards v. State, 205 Ala. 160, 87 So. 179, 180, the Supreme Court (speaking through the late Justice Somerville) said: "It is difficult to understand why a defendant would wish to have the jury instructed that, 'if there is a probability of defendant's innocence, you must find the defendant not guilty,' when he is entitled to an instruction that he must be acquitted unless shown to be guilty beyond any reasonable doubt — a requirement far more rigorous against the state and far more favorable to the defendant."
Third: This insistence has reference to the action of the court in declining to grant defendant a continuance on account of the absence of defendant's wife, who, at the time of the trial, was sick and unable to attend court and testify in behalf of her husband. As to this the record shows the following: "Then and there the defendant offers a verified statement showing the illness of his wife and further offers a verified showing of her testimony, which said testimony being admitted by the State, and asks for a continuance of the case because of the absence of his wife. It is therefore considered by the Court and it is ordered and adjudged by the Court, that the defendant be and he is put to trial upon the admitted showing for his wife and he is denied a continuance because of her absence and to this action of the Court the defendant excepts." On page 112 of the record, in connection with the foregoing, the following appears: "Judge Sparks (appellant's counsel), at this point, offers the showing for the absent witness, Mrs. Fred Newman, and reads same to the jury, which is in words and figures as follows." Then follows the testimony *Page 539 of said witness which covers about one and a half pages of the record. As to the foregoing we only need say that in this ruling complained of, the trial court acted within the discretion with which he was vested. It is the law, expressed in innumerable decisions, the granting or refusing continuances of trials is largely within the sound discretion of the trial judge, and his rulings in this connection are not revisable unless it affirmatively appears that a gross abuse of the discretion is shown. In Terry v. State, 120 Ala. 286,25 So. 176, headnote 4, the court said: "Where the State admits the showing made by the defendant as to what an absent witness, who is shown to be sick and unable to attend court, would testify, if present, a motion for a continuance, made by the defendant on account of the absence of said witness, is properly refused." Here, as stated, the defendant had the benefit of the testimony of the sick and absent witness, prepared and presented by his able counsel; hence, under the rule, it cannot be affirmed that the court abused, in any degree, its legal discretion, nor can it be held that the ruling complained of was erroneously prejudicial to the substantial rights of the defendant. 6 Alabama Digest, Criminal Law, 586.
As to the fourth insistence made on the application for rehearing, we have heretofore stated, and still adhere to the expressions in the opinion, that from a careful examination of the exceptions reserved to the court's rulings we find no error in any of them, to which exceptions were reserved, calculated to erroneously affect or impair the substantial rights of the defendant. Sup.Ct. Rule 45; Turner v. State, 29 Ala. App. 13, 15,191 So. 392; Id., 238 Ala. 352, 191 So. 396. It would be impracticable to discuss in detail each of the exceptions reserved.
The fifth proposition is fully answered by the provisions of Section 244, Title 15, Code 1940. We adhere to the expressions in the concurring opinion by Simpson, Judge of this court, applying to this point of decision.
The insistence contained in the sixth proposition on application for rehearing is untenable and cannot be sustained. The State was under no duty to offer proof to the effect that this appellant, himself, actually set fire to the automobile in question, for the reason that it was unnecessary to show the physical participation of the accused in the act itself. McClain v. State, 182 Ala. 67, 81, 62 So. 18, supra. Section 3196 of the Code 1923, Code 1940, Tit. 14, § 14, expressly provides: "The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors."
The remaining two contentions on the application for rehearing are sufficiently dealt with and discussed in the original opinion, therefore no necessity appears for a reiteration here.
As stated in our first opinion, the controlling question in this case is whether or not there was sufficient corroboration of the testimony of the accomplice to meet the required rule, often announced. And as there stated: "Certainly, it must be conceded, if the testimony of the accomplice Brown, is true [and if this has been shown], this appellant should be called upon [and required], to bear the burden of his wrong doing, as testified to by Brown."
We adhere to the conclusion heretofore announced; and the application for rehearing is overruled.
Application overruled.