The opinion
I cannot accede to the views expressed by my associate, SAMFORD, J., in the case of John Brown v. State, appealed from Montgomery circuit court. I am of the opinion that the record shows a compliance of the law in drawing the grand jury and the petit juries in question, and that the plea in abatement and motions relative to these matters are without merit.
At this time Associate Judge Merritt of this court is incapacitated from sitting in this case on account of extreme illness. The remaining two judges of this court being divided as to the decision on this question of this case, under the terms of the statute (Acts 1911, p. 449, § 3) this fact is hereby certified to the Supreme Court, and the case transmitted to said court for decision.
Defendant's requested charges A, B, and E, referred to in the opinion of SAMFORD, J., were the general charge, in different forms.
Requested charges C and D are as follows:
"C. The court charges the jury that you cannot find the defendant guilty unless you believe him guilty beyond all reasonable supposition.
"D. The court charges the jury that if the jury are not satisfied beyond a reasonable doubt and to a moral certainty and to the seclusion [exclusion] of every other reasonable hypothesis but that of the defendant's guilt, they should find him not guilty, and it is not necessary to raise a reasonable doubt that the jury should find from all the evidence a probability of the defendant's innocence, that such a doubt may arise and there is no probability of his innocence in the testimony and if the jury *Page 492
have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to find the defendant not guilty."