Upon reconsideration of the three questions decided in the foregoing opinion, in the light of the brief in support of application the court is not convinced that error underlies the conclusions there stated.
1. ANDERSON, C. J., SOMERVILLE and GARDNER, JJ., and the writer, hold, for the views set down in the original opinion, that no prejudicial, reversible error was committed with respect to the jury matter. Justices *Page 476 SAYRE, THOMAS, and BROWN dissent on this point.
2. All of the members of the court (except ANDERSON, C. J., not sitting) concur in the foregoing opinion's treatment of and conclusion upon the objection questioning the authority of the Chief Justice to direct the supernumerary judge to hold the court trying this appellant.
3. All of the members of the court — except BROWN, J., who dissents — adhere to the conclusion heretofore announced with respect to the remarks of the trial judge in connection with the instruction given at defendant's instance. It has been often held here that a probability of innocence is the "equivalent" of a reasonable doubt. Whitaker v. State, 106 Ala. 30,35, 17 So. 456, and cases there cited: Sanders v. Davis,153 Ala. 375, 385, 44 So. 979; Bones v. State, 117 Ala. 138,139, 23 So. 138 — among others. The comment of the court consisted with this similitude of the phrases indicated.
The application for rehearing is hence overruled.