The witness for the State, Sykes, testified that at a particular time and place he saw the defendant with a pistol concealed on his person. The solicitor asked the witness: “At thp time you saw the pistol, what was the defendant’s condition as to being-drunk or sober?” The defendant objected to the question as calling for evidence irrelevant and immaterial to the issue in the cause. The court overruled the objection and allowed the witness to' answer- that he was drunk. The fact that defendant was drunk on the occasion referred to, had no tendency to prove the Charge against him, but it did have the tendency to prejudice the jury unduly against him. — Berney v. State, 69 Ala. 233.
On his cross-examination by defendant, this witness was asked, if he had not been convicted for assaulting the defendant with a gun at the same time (that he .stated he saw him with the pistol concealed), and he answered that he had been. The solicitor then asked the witness to state what took place then and there. The court overruled an objection to the question and defendant excepted. The witness answered that the defendant cursed him, and put his hand in his pocket and took hold of the pistol, or made- as if he. would (do so), and witness at this time saw the pistol, and struck defendant with a gun, and thereupon, several other persons took defendant off. The purpose of the question by the defendant to the witness, was to show the bias of the witness against defendant.' This did not give the State the right to call for the particulars of the difficulty which occurred at the time of the assault, which was irrelevant and immaterial to the issue in the case — that of defendant carrying a pistol concealed about his person.
It is familiar that a probability of innocence, is the equivalent of a reasonable doubt and requires the ac*75quittal of defendant. — Whitaker v. State, 106 Ala. 35; Shaw v. State, 125 Ala. 81.
Tbe defendant requested tlie court to charge, “If there is a reasonable probability of defendant’s innocence, then this is a just foundation for a reasonable doubt, and authorizes an acquittal.” This charge was free from fault and should have been given. — Mims v. State, 37 So. Rep. 354.
Reversed and remanded.