There was no evidence in the cáse, nor could there have been any, as to what the witness thought in *110regard to the guilt of the defendant, nor as to the impression made on his mind by the testimony of S. M. Wood on the former trial. There was nothing before the court, therefore, to which the statements of Ferguson, that he “ might have been mistaken in thinking the defendant was the burglar,” and that the testimony of Wood “on the other trial shook me up considerably,” could have been contradictory, and they were properly excluded. The only ground upon which such testimony is ever received, is that it shows statements made by the witness out of court, which are inconsistent with, and therefore tend to weaken, his evidence on the trial. That reason for their admission does not exist in this case, and could not have existed, since any evidence with which these declarations were inconsistent, would itself have been immaterial and inadmissible.
The first and second charges set out in the record call attention to one criminating circumstance shown by the evidence, and involve an instruction to the jury, that this fact or circumstance, of itself, is not sufficient to authorize a conviction. It is the settled doctrine of this court, that the refusal of such a charge, although it may be true, as a legal proposition, that guilt is not inferable from the one fact postulated, is free from error. They tend to mislead and confuse the jury, and necessitate an explanatory charge; and “the court never errs in refusing a charge requiring explanation.” — Adams v. State, 52 Ala 379; Buchanan v. State, 55 Ala. 154. Moreover, these charges are argumentative, and their refusal may clearly be justified on this ground. Hussey v. State, 86 Ala. 34.
The third charge requested by defendant sought to impress on the jury the duty of acquittal, in the event of their entertaining a reasonable doubt of guilt, by a reference to what their duty would be in the - absence of such doubt, and to instruct them that acquittal is as imperative in the one case as conviction would be in the other. This is a mere argumentative and comparative generalization of the duty of jurors, having a tendency to confuse, rather than to enlighten them; and while its abstract propositions are doubtless correct, and clear to the trained legal mind, the court committed no error in refusing to give the charge.
The action of the court in overruling defendant’s motion for a new trial is not revisable. — Tyree v. Parham, 66 Ala. 424; Trammell v. Vane, 62 Ala. 301; Bedwell v. Bedwell, 77 Ala. 587.
*111The motion in arrest of judgment was predicated on facts which did not appear of record in the court below. It was properly overruled on this ground, if not also on others. Sparks v. State, 59 Ala. 82; Brown v. State, 52 Ala. 345; Blount v. State, 49 Ala. 381.
We discover no error in the record, and the judgment of the Criminal Court is affirmed.