
    (103 So. 925)
    Bus McDANIEL v. STATE.
    (7 Div. 49.)
    (Court of Appeals of Alabama.
    March 17, 1925.)
    Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.
    Burglary. M. B. Eubanks, of Rome, Ga., and E. O. McCord, of Gadsden, for appellant. Harwell G. Davis, Atty. Gen., for the State.
   BRICKEN, P. J.

A careful consideration of all the evidence in this case convinces us that the state failed to meet the burden of proof necessary under the law, and that the single insistence of counsel for appellant must be sustained. The only question argued in brief is that the court erred in refusing to give the general affirmative charge. The court did commit error in this connection, as the evidence adduced against this defendant hardly rises to the dignity of a suspicion. Certain it is that the guilt of the defendant was not proven beyond a reasonable doubt and to a moral certainty. Under this evidence the court should have directed the verdict, as requested by defendant in writing, and the failure of the court to give this charge necessitates the reversal of the judgment appealed from and a remandment of the cause. If, upon another trial of this ease, if such trial is had, no more testimony is offered against this defendant than the testimony contained in this transcript, he should be discharged from further custody in this proceeding. Reversed and remanded.  