On Rehearing. Appellant's application, to this court, for a rehearing in this case, is based upon the single point of decision which involves the action of the trial court in refusing to the defendant, on the trial in the court below, the following written charge: "The court charges the jury that if there is, from the evidence, a reasonable probability of defendant's innocence, the jury should acquit the defendant."
In opposition to the foregoing insistence the Attorney General, representing the State, advances two propositions, viz.: "(1) That the refusal to give the requested charge is not presented to this court for review on this appeal. And (2) That no reversible error has been committed in refusing to give this charge."
In support of proposition (1) supra, it is contended that because of the failure of the bill of exceptions to state that it contains all the evidence in this case, the action of the court in refusing to give the charge is not reviewable by this court; citing the case of Thorne v. State, 21 Ala. App. 57,105 So. 709, certiorari denied 213 Ala. 551, 105 So. 711.
We do not accord to the foregoing insistence of the State. Certainly, there are cases where the rule stated should be applied; notably, where the affirmative charge has been given or refused. It is true, as above stated, the Supreme Court denied the writ of certiorari in the Thorne case, supra, but in so doing, the above-stated proposition was expressly disapproved. In this connection the Supreme Court said: "We think the statement in the opinion of the Court of Appeals that refused charges requested in writing by defendant cannot be reviewed, where the bill of exceptions fails to disclose that it contains all the evidence, is too broad and needs some qualification. There may be refused charges which should properly be reviewed, though all the evidence does not appear, such as charges in no manner affected by that fact." See also the case of Anniston Mfg. Co. v. Southern Ry. Co., 145 Ala. 351,40 So. 965; Duggar v. Pitts, 145 Ala. 358, 363, *Page 113 39 So. 905, 907, 8 Ann.Cas. 146, wherein the Supreme Court said: "The fact that the bill of exceptions does not contain all the evidence is no reason for not reversing a cause upon the improper admissibility of the evidence."
In our case of Peck v. Henderson, 22 Ala. App. 541,118 So. 258, 261, where on appeal the oral charge of the court was omitted and did not appear in the record, this court said: "The single written charge given at appellee's request, which, as hereinabove stated, we have lettered 'A,' is not in our opinion incorrect. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23. And then, anyhow, the oral charge of the trial court is not included in the record filed on this appeal, as provided by section 9508 of the Code of 1923, in which circumstance it has been uniformly held by this court, in conformity with holdings by the Supreme Court, that the appellant is not entitled to a review by this court of the giving or refusal of written charges at the request of the parties below."
However, on certiorari to the Supreme Court, 218 Ala. 233,118 So. 262, 263, in the Peck v. Henderson case, the court, on this point, said:
"The oral charge is omitted. Does such omission prevent a review of the action of the trial court in giving the charge as having application to recovery under the two counts of the complaint? In Gay v. Taylor, 208 Ala. 376, 94 So. 473, the effect of such omission on the effort to review a refused charge, and that presumption was indulged which would support the action of the trial court. No case has been cited of the application of a like rule as to a given charge, in the absence of the oral charge. * * *
"The rule of Gay v. Taylor, supra, as to declining to review the refusal of a charge in the absence of the general charge, does not apply to a given charge. And we disapprove of the observation of the Court of Appeals that appellant was not entitled to review the giving of charge A, for the reason that the oral charge was not included in the record on appeal, as provided by statute."
From what has been said the first insistence of State in this matter, supra, cannot be approved or sustained.
As to the second proposition, i. e., "That no reversible error has been committed in refusing to give this charge"; it is not contended by the State that the charge in question was bad, and improperly stated the law, but the insistence that no error prevailed in the action of the court in refusing the charge is that the rule of law contained in said charge was substantially and fairly given to the jury in the court's general charge or in charges given at the request of defendant. This, under Section 9509 of the Code 1923. We are of the opinion that the Attorney General is correct in this insistence, for it does appear that the court in its oral charge properly stated the law of reasonable doubt, in its every phase; and in addition thereto, gave at the request of the defendant numerous special written charges, among which are charges numbered "4" and "8." Charge 4 reads as follows: "The Court charges the jury that a probability of defendant's innocence is a just foundation for a reasonable doubt, and, therefore, for his acquittal."
And charge 8 as appears of record is as follows: "The Court charges the jury that if they are not satisfied beyond all reasonable doubt to a moral certainty and to the exclusion of every other reasonable hypothesis but that of the guilt of defendant, then they should find him not guilty, and it is not necessary to raise a reasonable doubt that the jury should find from all the evidence a probability of defendant's innocence, but such a doubt may arise even when there is no probability of his innocence in the testimony, and, if the jury have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to acquit him."
In addition to the two above-quoted charges 4 and 8, the court gave numerous other special written charges which under Section 9509 of the Code 1923, supra, rendered his action in refusing charge 1 errorless. See given charges numbered 3, 5, 6, 9, 11 and 12.
It thus appearing that the same rule of law contained in the refused charge under discussion was fairly and substantially given to the jury, as stated no error prevailed in the action of the court by refusing said charge 1.
The pertinent portion of said Section 9509, on this question, reads as follows: "The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and *Page 114 fairly given to the jury in the court's general charge or in charges given at the request of parties."
The foregoing being conclusive of the questions involved upon this application for rehearing, it follows, of necessity, that the application must be overruled and denied. It is so ordered.
Application for rehearing overruled.