The opinion
On Rehearing
CATES, Judge.
The Attorney General takes us to task for “holding that a defendant has a vested interest in a metaphor.”
*220 Though we fairly risk the accusation that eloquence may indeed disguise our ignorance and incur the wrath of the sententious Roman who taught, “Judex damnatur cum nocens absolvitur,” we prefer to abide by the Anglo-Saxon rock of freedom : “In favorem vitae, libertatis, et innocentiae omnia praesumuntur.”
Our statute has abolished the old presumption of injury that existed upon a showing of error — though a harsher doctrine as to the review of a denial of new trial also once prevailed.
Here, we consider the' refused instruction as embodying a substantial right, yes, put as a metaphor — innocence is a fact until facts convince you beyond a reasonable doubt it is not a fact. “The life of the law has not been logic: it has been experience.”
What more graphic presentation of our religion has ever been put than the parable of the Prodigal Son? Yes, we have given the defendant a vested interest in a metaphor and this lest the jury, without the utility of the wording, should become mixed up in metaphysical and semantical confusion, as all men can, in treating with the qualitative concept that an adverse verdict can arise only “from the evidence upon conviction of guilt beyond a reasonable doubt.” This phrase may be trite, yet it should not be cavalierly relegated to the limbo of outworn cliches of mere lip service to the once noble idea of freedom embodied in the concept that the accuser has the burden of .proof.
Application overruled.
HARWOOD, P. J., dissents.
After Remandment
CATES, Judge.
On authority of Gordon v. State of Alabama, Ala., 110 So.2d 334 , the judgment below is due to be
Affirmed.