
    (107 So. 925)
    Bascomb GILBERT v. STATE.
    (7 Div. 129.)
    (Court of Appeals of Alabama.
    Feb. 9, 1926.)
    Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge. Bascomb Gilbert was convicted of manslaughter in the first degree, and he appeals.
    Reversed and remanded.
    J. V. Curtis and C. A. Wolfes, both of Ft. Payne, for appellant. Harwell G. Davis, Atty. Gen., and Thos. E. Knight, 'Jr., Asst. Atty. Gen., for the State.
    Counsel argue for error, and cite Gilbert v. State, 20 Ala. App. 565, 104 So. 45.
    Counsel express doubt "as to the sufficiency vel non of the evidence, and refrain from argument thereon.
   RICE, J.

In the view we take of this case, we may pretermit a discussion of all of the exceptions reserved or rulings made during the conduct of the trial of this appellant, other than the overruling of his motion for a new trial. We have carefully read and considered all the evidence adduced on behalf of both the state and defendant (appellant), and without discussing same in detail we are led to quote and approve as applicable in all respects here the following observations of Bricken, P. J., in the opinion in Gilbert v. State, 104 So. 45, 20 Ala. App. 565, to wit: “It is manifest that the proof in this case, falls far short of the convincing, satisfying evidence necessary to overcome the presumption of innocence which under the law attended this accused. The offense charged was a grievous one, and certainly resort to suspicion, speculation, or conjecture should not be indulged in order to foist the crime upon this defendant.” We may remark that the appellant in the Gilbert Case quoted from was jointly indicted with the appellant here, and, while there are some slight differences in the testimony in the two cases (they being tried separately), yet after a careful study we are convinced that the gross ineulRatory effect of the testimony in this case against this appellant is no stronger than was the testimony in the Gilbert Case, supra, against the appellant there. For the error in overruling the motion for a new trial, the judgment is reversed, and the cause remanded. Reversed and remanded.  