
    (101 So. 634)
    GILCHRIST v. STATE.
    (8 Div. 170.)
    (Court of Appeals of Alabama.
    Oct. 7, 1924.
    Rehearing Denied Oct. 28, 1924.)
    Criminal law c&wkey;815 (9) — Instruction properly refused as not predicated upon evidence.
    Instruction to find defendant not guilty if there were a probability of his innocence was properly refused as not predicated upon evidence.
    Appeal from Lawrence 'County Court; W. R. Jackson, Judge.
    ■Ed • Gilchrist was convicted of carrying a concealed pistol, and he appeals.
    Affirmed.
    Charge 1, refused to defendant, is as follows;
    “The court charges the jury that, if there is a probability of the defendant’s innocence, you should find him not guilty.”
    S. A. Lynne, of Decatur, for appellant.
    Charge 1 should have been given. Adams v. State, 175 Ala. 11, 57 So. 591.
    Harwell G. Davis, Atty. Gen., for the State.,
    Brief of counsel did not reach the Reporter.
   BRICKEN, P. J.

The defendant was tried by a jury in the county court of Lawrence county and convicted for the offense of carrying a pistol concealed about his person.

Upon the trial of this case the evidence was in conflict, and therefore presented a question for the determination of the jury. There was ample evidence upon which to predicate the verdict of the jury.

The insistencies of error relate principally to the refusal of several written charges requested by defendant. No exceptions were reserved to any ruling of the court upon the testimony, nor was there any exception to the oral charge of the court. No motion for a new trial was made.

Charge 1, refused to defendant, was not predicated upon the evidence, and for this reason, was properly refused. This identical charge has been condemned in the cases of Edwards v. State, 205 Ala. 160, 87 So. 179, and in Davis v. State, 188 Ala. 59, 66 So. 67, and in many decisions by this court not necessary to mention.

The other refused charges were properly refused. As stated, this was not a case for the affirmative charge, and the court was without authority to direct a verdict. Such ■other charges as contained correct propositions of law were fairly and substantially covered by the court’s oral charge or by ■charges given at request of defendant. No error appears.

Affirmed. 
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