The defendant was convicted of manslaughter in the first degree. During the progress of the trial the defendant reserved an exception to the admission of certain evidence, and also exceptions to the refusal of the court to give certain charges to the jury. We are of opinion that the predicate for the admission of evidence of what an absent witness testified to on a former trial was insufficient, but this error was fully remedied by subsequent testimony.
The first and second charges refused were objectionable, in that they demanded an acquittal if the defendant was reasonably free from fault in bringing on the difficulty. Similar charges have been condemned.— Holmes v. State, 100 Ala. 84; Crawford v. State, 112 Ala. 1, 28, authorities cited.
Charge 3 is argumentative and misleading, if not wholly abstract, and properly refused.
Charge 4 was misleading. It entirely ignores that phase of the evidence which tended to show that deceased was killed while lying in bed unconscious of his danger. We will consider charge 5, refused, later on.
Charge 6 is subject to the same objection as charge 3. In addition, whatever benefit the defendant might have received from the giving of this charge was embodied in charge 12, which was given.
Charge 7 was properly refused. There was evidence that defendant killed deceased'while the latter was lying in bed, unconscious of defendant’s purpose.
Charge 8 is a mere argument; and there may be some doubt of a man’s guilt not amounting to a reasonable doubt.
*79Charge 9 is objectionable upon several grounds, the chief of which is, that it requires the jury to weigh it. in connection with all the testimony which tends to corroborate it, instead of with all the evidence.
The evidence in the case is not wholly circumstantial. The corpus delicti was clearly established, and defendant’s confession betrayed the guilty agent. . If credited by tlie jury beyond a reasonable doubt, they alone were sufficient to require a conviction. The circumstances were additional proof of his guilt. Charges 10, 11 and 1.2 were properly refused on these grounds, besides being infirm in other respects.
Charge 13 ivas calculated to impress the jury with the belief that they must be satisfied beyond all doubt of the defendant’s guilt, before they could convict. In the case of Torrey v. Burney, 113 Ala. 196, 501, we had occasion to consider the word “satisfy” when used alone in a charge to the jury, and held that it exacted too high a degree of proof.
We can find no fault in charge number 5, the refusal to give which must reverse the case, unless the judgment is affirmed by virtue of section 1333 of the Criminal Code of 1.896, which enacts that “the judgment of conviction must not be reversed, because of error in the record, when the court is satisfied that no injury resulted therefrom.” We are of opinion the proper construction of this section of the Code is, that the court must be satisfied that the verdict of the jury would not have been different if the charge had been given. We cannot say in this case, that if charge 5 had been given, the verdict of the jury would have been the same. It asserts a correct proposition of law, and there was reversible error in its refusal.
Reversed and remanded.