The opinion
SOMERVILLE, J.
— The judgment in this cause must, in our opinion, be reversed, for the error committed in refusing the last charge, numbered eleven, which was requested by the defendant. This charge reads as follows: “ A probability of defenda/ntfs innocence is a just foundation for a reasonable doubt of his guilt, and therefore for his acquittal.”
*39 • Our rulings on this point are not in harmony. The charge, as requested, was evidently taken from Cohen’s case, 50 Ala. 108 , where it was held to assert a correct proposition of law, and its refusal was decided to be error. In Bay’s case, reported in the same volume ( 50 Ala. 104 ), a charge couched in the same language, but prefaced by the assertion, that “a reasonable doubt has been defined to be a doubt for which a reason could be given,” was held to be misleading, apparently because of this definition of a reasonable doubt. In Williams’ case, 52 Ala. 411, a charge was held misleading, which declared that the jury must acquit, “if from all the evidence there is a probability of the innocence ” of the defendant. The two rulings in the cases of Cohen and of Williams are not reconcilable, and we think the former declares the correct rule. Probability is the state of being probable; and probable has been defined to be, “having more evidence for than agavnst” — “supported by evidence which inclines the mind to belief, but leaves some room for doubt.” — Webster’s Dict.; Worcester’s Dict. It clearly involves the idea of a preponderance of evidence, as used in connection with testimony. Manifestly, if the evidence preponderates in favor of the prisoner — that is, if the evidence in his favor outweighs or overbalances that against him — it is impossible for a jury not to entertain a reasonable doubt as to his guilt. — Browning v. The State, 30 Miss. 656 .
We see no error in the refusal of the other charges requested by the defendant. Most of them are affected with the vice of assuming that the defendant was free from fault in the inauguration of the difficulty, or, at least, in failing to submit this aspect of the case to the jury for their determination. The others are ambiguous and involved in meaning, and were calculated to mislead the jury, and, for this reason, were properly refused.
For the error above mentioned, however, the judgment of the Circuit Court is reversed, and the cause remanded for a new trial. The prisoner will, in the meanwhile, be retained in custody, until discharged by due course of law.