Defendant was convicted of murder in the second degree, and appeals. The questions presented for review arise out of the refusal of the trial court to give certain written charges requested by the defendant.
Charge 1 should have been given. It is settled that unless the jury believe, beyond á reasonable doubt, that the defendant in a criminal prosecution is guilty, they must return a verdict of not guilty. The charge in -question did not require so much, and certainly the jury must believe guilt before they can believe guilt beyond a reasonable doubt. The state cannot complain that the charge was too favorable to it.
Charge 2 was condemned in Prater v. State, 107 Ala. 26, 18 South. 238. We see no room for substantial differentiation between that case and this.
The indictment was aptly framed to charge murder, but it contained also a charge of manslaughter. Charge 3 asserted a faulty proposition of law, and was properly refused.
There was one eyewitness only to the killing; but other witnesses testified to facts going to show flight and concealment under an assumed name — incriminating circumstances. There was an attack upon the-credibility of the eyewitness. The postulate of charge 4 that the evidence of the state consisted in the statement of a witness was unwarranted, and the charge was -properly refused for this, if not for other reasons.
*37In Hale v. State, 122 Ala. 85, 26 South. 236, in Pitts v. State, 140 Ala. 70, 37 South. 101, and in other cases cited in the first-named case, it was held that charges in the identical language of charge 5 were “not offensive to the rule against giving undue prominence to particular parts of the evidence.” The charge should have been given.
If there ivas conflict in the testimony of the witness Frank Turner, as given before the coroner’s jury and that given at the trial, it was concerned, in part at least about immaterial matters. If not otherwise vicious, charge 6 had a tendency to mislead the jury, and was properly refused, for that it might have led the jury to conclude that they might reject the witness’ entire testimony for a conflict in immaterial matters.
Charge 7 should have been given. — Churchwell v. State, 117 Ala. 124, 23 South. 72.
Reversed and remanded.
Dowdell, C. J., and Anderson and McClellan, JJ., concur. '