
    (116 So. 898)
    GEORGE v. STATE.
    (1 Div. 776.)
    Court of Appeals of Alabama.
    May 15, 1928.
    B. E. McMillan, Jr., of Mobile, for appellant.
    Charlie C. McCall, Atty. Gen., for the State.
    Brief did not reach the Reporter.
   BRÍCKEN, P. J.

This ease has been considered by the court en banc. We have read the evidence, and, applying the law applicable thereto, we are of the opinion and so hold that the state failed to meet the burden of proof necessary to a conviction of this defendant. The presumption of innocence which the law provides and which is evidential, together with other reasonable probabilities of innocence apparent from the record, are entirely too numerous to permit this conviction to stand. The statute (section 8599 of the Code 1923) provides: In cases of this character, where the trial was had without a jury, this court, upon appeal, shall review the same without any presumption in favor of the court below, either on the rulings on the law or conclusion on the evidence, and, if there be error, shall render such judgment in the cause as the court below should have rendered. As stated, the court below should have discharged the defendant under the evidence in this case because of its insufficiency. Pailing' so to do, the judgment of conviction rendered by the court below is reversed and a judgment here entered discharging the defendant from further custody in these proceedings.

Reversed and rendered.  