The opinion
On original submission we reversed the judgment of the lower court on account of the refusal of written charge number 14.
For purposes of comparison and illustration we will set it out: "The court charges the jury that the evidence in this case is circumstantial and that before you can convict the defendant on such testimony the proof must be very strong and cogent, so much so as to exclude every reasonable doubt and probability of his innocence."
This is an exact counterpart to charge number 1 in the case of Pickens v. State, 115 Ala. 42 , 22 So. 551 .
We noted the subsequent reviews of the instruction in our original opinion.
The Assistant Attorney General on application for rehearing directs our attention to the case of McDowell v. State, 238 Ala. 101 , 189 So. 183 , 184 . He presses the position that this case by implication overrules the holding in the Pickens case in respect to the charge of instant concern.
The instruction in the McDowell case is: "The Jury are instructed that, to justify a conviction of crime on circumstantial evidence alone, it must be very strong and cogent and must be inconsistent with any reasonable theory of innocence."
Chief Justice Anderson, writing for the court, disapproved the charge for these reasons: "It is faulty for the use of the word 'very.' Moreover, the evidence was not entirely circumstantial."
"Very" when used as an adverb means: "In a high degree; to no small extent; exceedingly; extremely." Webster's New International Dictionary. See also, Benoist *Page 263
v. Driveaway Co. of Mo., Mo. App., 122 S.W.2d 86 .
With this definition applied, the use of the adverb in the charge in the Pickens case rendered the instruction faulty.
The charge in the case at bar contains the expression "very strong and cogent", but there follows the qualifying and limiting term " so much so as to exclude every reasonable doubt" etc. (Emphasis ours.)
The jury, therefore, was not left in doubt as to the meaning of the word "very". Its purport was specifically restricted and limited by the qualification and explanation which followed.
Our decisions must, of course, be governed and controlled by the decisions of the Supreme Court. Title 13, Sec. 95, Code 1940.
We do not conclude that the McDowell case, by implication, overruled the holding in the Pickens case. We are, therefore, impelled to follow the latter and adopt it as our authority.
The application for rehearing is overruled.
BRICKEN, P.J., not sitting.
After Remandment.