ON REHEARING
PRICE, Presiding Judge.Counsel for appellant insists that we are in error in holding the charges refused to defendant were covered by the court’s oral charge.
Refused charge No. 4 was as follows:
“The Court charges the jury that the law presumes the defendant to be innocent of the offense charged in the indictment, and this presumption continues to go in favor of the defendant until the evidence convinces the jury beyond a reasonable doubt of his guilt, and you cannot find the defendant guilty of any offense charged in the indictment until the evidence in the case satisfies you beyond all reasonable doubt of his guilt, and so long as you or any of you have a reasonable doubt as to the existence of any of the elements necessary to constitute the of*421fense, you should not find the defendant guilty,”
The same rule of law was fairly and substantially covered by the following portion of the court’s oral charge:
“ * * * the burden of proof is upon the State of Alabama to satisfy you from the evidence beyond a reasonable doubt and to a moral certainty that this defendant is guilty before you can convict him. The Defendant enters into the trial presumed to be innocent and this presumption of innocence accompanies him, shields him and attends him and is evidence in his behalf and he is entitled to the benefit of this presumption until you are so satisfied from the evidence beyond a reasonable doubt and to a moral certainty that he is guilty of some offense of which he may be found guilty under this indictment. Of course, Ladies and Gentlemen, when you are so satisfied from the evidence beyond a reasonable doubt and to a moral certainty that he is guilty, then this presumption of innocence in his favor at that point would cease.”
Gordon v. State, 268 Ala. 517, 110 So.2d 334.
Refused charges 34, 37 and 39 were as follows:
“34. The Court charges the jury that a person .charged with a felony should not be convicted unless the evidence excludes to a moral certainty every reasonable hypothesis but that of his guilt; no matter how strong the circumstances are they do not come up to the full measure of proof, which the law requires if they can be reasonably reconciled with the theory that the defendant is innocent.
“37. The evidence against the defendant in this case is circumstantial, and his innocence must be presumed by the jury until the case proved against him is, in all its material circumstances, beyond any reasonable doubt; that to find him guilty, as charged, the evidence must be strong and cogent, and, unless it is so strong and cogent as to show the defendant’s guilt to a moral certainty, the jury must find him not guilty.
“39. I charge you, that the humane provisions of the law are that a prisoner charged with a felony should not be convicted on circumstantial evidence, unless the same shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory of the innocence of the defendant, then the defendant is not shown to be guilty by that full measure of proof which the law requires. Unless you are reasonably satisfied from the evidence, beyond a reasonable doubt, that the defendant is guilty, then' you should not convict him.”
These charges were covered by the following portion of the court’s oral charge:
“ * * *. The test of the sufficiency of circumstantial evidence in a criminal case is whether the circumstances as proven are capable of explanation upon any reasonable hypothesis consistent with Defendant’s innocence and if they are capable of such explanation then the Defendant should be acquitted. The burden is upon the State and it is the duty of the State to show beyond all reasonable doubt and to the exclusion of every other reasonable hypothesis every circumstance necessary tó show that the Defendant is guilty, and unless the State has dope that in this case it would be your duty to acquit the Defendant. You must be satisfied to a moral certainty, not only that the proof is consistent with the guilt of the Defendant, but that it is wholly inconsistent with every rational conclusion, and unless the members of the Jury are so convinced by the evidence of the Defendant’s guilt that they should each venture to act upon the decision in matters of the highest concern and importance *422to their own interests they must find the Defendant not guilty.”
This principle of law was also covered by written charge 38 given at defendant’s request, which reads:
“38. I charge you, that before you can convict the defendant in this case, you must find from the evidence beyond all reasonable doubt that the circumstances surrounding the death of the deceased are consistent with the guilt of the defendant, and more than consistent with his guilt; that such circumstances are not sufficient to justify a conviction if they merely cause a suspicion of the defendant’s guilt.”
Application for rehearing overruled.
PER CURIAM.Reversed and remanded on authority of Alabama Supreme Court Manuscript, Ex parte Brickley, 286 Ala. 546, 243 So.2d 502.