On Rehearing
In their brief in support of appellant’s application for rehearing, counsel for appellant insist that the court’s refusal' of requested charge 1 constituted error, and for this reason a rehearing should be granted, and the judgment reversed.
Refused charge 1 is as follows:
“The Court charges the Jury that the fact that Hamilton Green Jackson, the defendant, is accused of murder, and the fact that the Grand Jury found an indictment against him in this case, are not facts or circumstances to which you are allowed to look in this case in considering the case, and I charge you that the indictment is neither a circumstance in law or fact showing or tending to show that the defendant is guilty of the charge.”
Counsel rely particularly upon Salter v. State, 22 Ala.App. 86, 112 So. 538, also cite Prater v. State, 193 Ala. 40, 69 So. 539.
We find nothing in the Prater case, supra, tending to support counsel’s position.
In the Salter case, supra [22 Ala.App. 86, 112 So. 539], the court held that the refusal of the following charge was error:
“ ‘(18) The court charges the jury that the indictment in this case is not any evidence in the case, and the fact that defendant has been indicted is not to be considered by you as a circumstance against him, but said indictment is merely the method of placing defendant on his trial, but the presumption of innocence attends the defendant throughout this trial and remains with him and authorizes an acquittal, if the entire testimony fails to overcome said presumption, by proof of defendant’s guilt beyond a reasonable doubt.’ ”
However, a reading of the opinion indicates that the basis of error growing out of the refusal of this charge was that an accused is entitled to have the jury instructed as to the presumption of innocence attending him upon trial.
Such was the treatment of the charge in Bush v. State, 23 Ala.App. 502, 127 So. 909, 910, reference being made to the Salter *527case, supra. The court held that the law as to presumption of innocence having been adequately covered in the court’s oral charge, it was not error to refuse the charge. The court stated further “So far as the first part of said refused charge 12 is concerned, dealing with the ‘non-evidentiary’ value of the returning of the indictment against appellant (defendant), it is sufficient to say that this form of instruction has been condemned by our Supreme Court, as being no more than an argument. Morris v. State, 146 Ala. 66, 41 So. 274.” To the same effect is Crenshaw v. State, 153 Ala. 5, 45 So. 631; Pelham v. State, 24 Ala.App, 330, 134 So. 888; Woodard v. State, 253 Ala. 259, 44 So.2d 241; Jones v. State, 260 Ala. 341, 70 So.2d 629.
In the present case, the court having fully and amply covered the law as to the presumption of innocence clothing the appellant, no error resulted in the refusal of charge 1.
Other matters are argued in counsel’s brief. The points were, we think, dealt with in our original opinion.
Application overruled.