Charge 3, refused to defendant, is as follows: "I charge you gentlemen of the jury that if you believe from the evidence that the defendant was at the still for the purpose of obtaining whisky for his sick child, and for no other purpose, and from this belief taken, and considered with all the evidence in the case, you have a reasonable doubt of the guilt of the defendant, then you should find him not guilty."
I think the refusal of the foregoing charge was prejudicial error. The charge is not abstract, nor was it in repetition of any instruction already given by the court, orally or otherwise. The charge, as will be noted, is predicated upon a consideration of all the evidence, and certainly it is the law if the jury upon considering all the evidence have a reasonable doubt about the defendant's guilt, arising out of any part of the evidence, they should find the defendant not guilty; for a jury may not convict in any case, if they entertain a reasonable doubt of the guilt of the accused where such reasonable doubt is engendered from the evidence, be it the whole evidence, or any part thereof, where the whole evidence has been considered. In other words, if the jury entertain a reasonable *Page 352 doubt of the defendant's guilt, after considering all the evidence, it is their duty to acquit, though the doubt arises from a part only of the evidence. It is the duty of the jury, in pronouncing on issues submitted to them, to consider and weigh all the testimony in the case. This does not mean that all, or any part, of it shall be believed. The law exacts no such rule as that. It must be considered, and given such weight as the manner of giving it in, its intrinsic nature, and the other testimony in the cause entitle it to. This much and nothing more. The following authorities have expressly so held: Hurd v. State, 94 Ala. 100, 10 So. 528; Forney v. State,98 Ala. 19, 13 So. 540; Welch v. State, 156 Ala. 112, 46 So. 856; Walker v. State, 117 Ala. 55, 23 So. 149; Miller v. State,107 Ala. 58, 19 So. 37; Prince v. State, 100 Ala. 146, 14 So. 409, 46 Am. St. Rep. 28; Williams v. State, 129 Ala. 659,30 So. 910; Hale v. State, 122 Ala. 85, 26 So. 236; Roberson v. State,175 Ala. 15, 57 So. 829; Davidson v. State, 167 Ala. 68,52 So. 751, 140 Am. St. Rep. 17; Griffin v. State, 150 Ala. 49, 52,43 So. 197; Smith v. State, 197 Ala. 193, 202, 72 So. 316; Doty v. State, 9 Ala. App. 21, 64 So. 170; Black v. State, 1 Ala. App. 169,173, 55 So. 948; Veasey v. State, 20 Ala. App. 478,103 So. 67.
Without further discussion I do not accord to the conclusion of the majority of this court in overruling the application for rehearing. In my opinion it should be granted, and the cause should be reversed and remanded, as ably contended by counsel in behalf of appellant.