¶1The defendant was convicted of petit larceny. After the evidence had closed, the defendant requested the court to instruct the jury as follows: “After considering all the evidence in this case, unless you can say that you have a fixed conviction of the truth of the charge, you are not satisfied beyond a reasonable doubt, and should not convict the defendant.”
¶2First, is the charge expressed in that plain, simple and unambiguous language which should characterize instructions to a jury ?—L. & N. R. R. Co. v. Hall, 87 Ala. 723 ; Peterson v. The State, 74 Ala. 34. Counsel for appellant have submitted an argument to show that the legal effect of the charge was the same as if requested to charge that “unless the jury were satisfied beyond a reasonable doubt of the defendant’s guilt, they should acquit.” If no more was intended, we may well inquire, why the instruction was expressed in the language selected? We are satisfied that the presiding judge was of the opinion, that the instruction as framed required something more than that the jury should be satisfied beyond a reasonable doubt, and refused to give the charge for this reason. The jury might have believed from the charge requested, that before a verdict of guilty could be returned, there should be a conviction of guilt, unchangeable, immovable by any amount of other evidence. We have some difficulty ourselves in determining exactly what meaning was intended by “a fixed conviction.” A charge may be technically correct, yet it may be expressed in such a way as to be calculated to mislead the jury. A court should always refuse such charges.—3 Brick. Dig. 112, § 85; Knowles v. Ogletree, *9296 Ala. 555. Whatever may have been intended, we are satisfied it was calculated to mislead the jury, and 'there was no error in refusing it.
¶3The other questions reserved are unimportant. It was for the jury to say whether the possession of the property was explained. The prosecution did not depend entirely upon the fact of possession. There was other evidence to show the opportunity of the defendant to steal the property.
¶4Affirmed.