
    (123 So. 283)
    SMITH v. STATE.
    (8 Div. 855.)
    Court of Appeals of Alabama.
    June 29, 1929.
    Almon & Almon, of Decatur, for appellant.
    Charlie C. McCall, Atty. Gen., for the State.
   BRICKEN, P. J.

This appellant was tried and convicted upon an affidavit which charged him with the offense of failing tó work the public road.

In order to sustain a conviction upon a charge of this character, the state is under the burden of showing by the evidence: (1) That the accused is liable to road duty; (2) that he willfully failed or refused to work the public road, either in person or by substitute; and (3)' after having been legally warned so to do. The measure of proof, as in all criminal cases, being beyond a reasonable doubt.

In this case there is no evidence showing, or tending to show, that the appellant was liable to road duty, or that he had been legally warned to work the public road, and therefore the court erred in not giving at his re-' quest the affirmative charge requested in writing.

The court did give at the reqbest of the state the following charge: “I charge you gentlemen of the jury that if you believe the evidence in this case, you must find the defendant guilty.” .There is no phase of this case which authorized the court to direct a verdict in favor of the state, for the reasons hereinabove stated. Moreover, the charge was bad, as it required the conviction of the defendant even if the jury may not have believed from the evidence beyond a reasonable doubt that he was guilty, which, as stated, is the measure of proof required in all criminal cases.

For the errors indicated the judgment of conviction from which this appeal was taken is reversed, and the cause remanded.

Reversed and remanded.  