This appeal rests upon the refusal of the trial court to give the affirmative charge for defendant which was requested upon the grounds that there was no evidence upon which to base a verdict of guilt or to sustain a judgment of conviction.
This court sitting en banc has read the entire record, and has considered this question, and the court is unanimous in the opinion that the charge should have been given. It clearly appears that the evidence in this case is insufficient to overcome the presumption of innocence to which the defendant was entitled. The testimony at best raises a mere suspicion, and is wholly insufficient to meet the required burden resting upon the state. There is no a scintilla of evidence that this defendant committed any of the acts charged in the first count of the indictment, and for this reason the court should have directed the jury to find a verdict acquitting the defendant, as requested in writing.
Reversed as remanded.