On Application for Rehearing
HARWOOD, Presiding Judge.In his brief in support of appellant’s application for a rehearing counsel requests that we write to the court’s refusal of appellant’s refused charge 14, a matter we pretermitted in our original opinion, being doubtful that the point justified a discussion. We are however glad to comply with counsel’s request in order to afford a full review of all points raised.
*157Refused charge 14 is as follows:
“A probability from the evidence of the defendant’s innocence is a just foundation for a reasonable doubt of his guilt. If after consideration of the entire evidence, you find that the defendant is probably innocent to the extent of causing a reasonable doubt in your minds of his guilt, you should find him not guilty.”
The principle sought to be enunciated in charge 14, supra, is contained in its first sentence that: “A probability from the evidence of defendant’s innocence is a just foundation for a reasonable doubt of his guilt.” The remaining portion of this charge is but a restatement in effect of the first sentence.
We pretermit the' omission of the qualifying word “reasonable” before probability, though this in itself would make the charge defective.
In Carroll v. State, 36 Ala.App. 59, 52 So.2d 171, 173, the late Presiding Judge Carr considered the refusal by the lower court of the following charge:
“26. The Court charges the jury that if there is, from the evidence, a reasonable probability of defendant’s innocence, the jury should acquit the defendant.”
In holding that the refusal of this charge was not error, Judge Carr wrote:
“We find that charge 26 found approval in the following cases: Huguley v. State, 4 Ala.App. 29, 58 So. 814; Cory v. State, 22 Ala.App. 341, 115 So. 700; Bufford v. State, 23 Ala.App. 521, 128 So. 126; Smith v. State, 28 Ala.App. 506, 189 So. 86. It was disapproved in: Freeland v. State, 26 Ala.App. 74, 153 So. 294.
“The Supreme Court reviewed the charge in Russo v. State, 236 Ala. 155, 181 So. 502, 505, Justice Knight, in commenting on the propriety of the refusal of the charge, said: ‘This charge was fully covered by other instructions given at the request of the defendant. The court had charged the jury that they must acquit the defendant unless shown to be guilty beyond a reasonable doubt. This charge given the jury was far more rigorous against the state than refused requested charge 38, as pointed out in the case of Edwards v. State, 205 Ala. 160, 87 So. 179. The refusal, therefore, of charge 38 involved no prejudicial error.’
“In the case at bar the court orally and by written instructions charged the jury fully on the doctrine of reasonable doubt. We are persuaded that our refusal to base error here is controlled by the holding in the Russo case, supra.
“We reached this conclusion in the case of Bankhead v. State, 33 Ala. App. 269, 32 So.2d 814.”
In the present case the court orally instructed the jury as follows:
“The burden is on the State of Alabama to convince you beyond a reasonable doubt and to a moral certainty of the guilt of this defendant of one of the charges contained in this indictment. He comes into this Court as all defendants, presumed to be innocent until the State, by the evidence from the witness stand, convinces you beyond a reasonable doubt and to a moral certainty of his guilt, and until the State does by their testimony, gentlemen of the jury, from the witness stand, convince you beyond a reasonable doubt and to a moral certainty of his guilt, why you. would not be authorized to bring in a verdict of guilt.”
Because of the conclusions in the Carroll case, supra, as to a charge of similar import to charge 14, now considered, and in further view of the court’s oral instructions, we are of the conclusion that no error resulted from the refusal of charge 14.
*158We adhere to our former conclusions as to the propriety of the court’s refusal of ■charge 8 for the reasons expressed in our ■original' opinion.
Application overruled.