
    (137 So. 781)
    MILLER v. STATE.
    1 Div. 11.
    Court of Appeals of Alabama.
    Nov. 24, 1931.
    
      Outlaw & Kilborn, of Mobile, for appellant.
    Thos. E. Knight, Jr., Atty. Gen., for the State.
   SAMFORD, J.

The evidence for the state tended to prove the guilt of defendant, while that for' the defendant was just as emphatic to the contrary. In this state of the evidence the verdict of the jury might have been either a conviction or an acquittal, depending on the weight of the evidence as determined by the jury. After conviction, the defendant made his motion to set aside the verdict on the grounds of newly discovered evidence, and on the hearing of the motion brought himself within the rule for submission of this evidence to the court; i. e., that he did not know of the evidence at the time of trial, and had used all due diligence, etc. Defendant then offered affidavits tending to show that the yearling alleged to have been stolen and butchered-by defendant was still alive and in a pasture with other cattle about one and one-half miles from defendant’s place, and not in his possession at all. Counter affidavits were introduced by the state tending to disprove this and tending to disprove the identity of the yearling claimed to have been found. The evidence offered by defendant by affidavits would have been admissible on the trial, and would have tended strongly towards sustaining his defense. In fact, if these witnesses are to be believed, defendant could not be guilty of the offense charged. Coupled with the somewhat uncertain testimony of the state’s witnesses-on cross-examination touching the identity of the yearling in question, we think the motion for a new trial should have been granted.

The reversal of the case does not rest alone on the overruling of the motion above, but .must be reversed for the error of the court in refusing to give the following written charge: “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.” This charge is held to be good in Huguley v. State, 4 Ala. App. 29, 58 So. 814, and in many succeeding cases, some of which are discussed in Arrington v. State, ante, p. 233, 133 So. 592.

For the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.  