¶1concurs in the opinion and in the reversal of the case, but thinks that charge 20, while correct, was abstract in the present case, and that the refusal of same was not reversible error. McClellan and Somerville, JJ., think that the case should be affirmed, and therefore dissent.
¶2Justices McClellan and Somerville are of the opinion that the trial court did not commit reversible error in refusing special charges 12 and 20. That numbered 20 obviously referred, by the employment, in its hypoth*14esis, of the term “exhibited,” to manifestations of “prejudice or anger against the defendant” by witnesses while before the jury on the trial. There is not a line in the bill of exceptions to justify that feature of the hypothesis of charge 20. It was therefore abstract, and properly refused, as was expressly ruled in Wright’s Case, 156 Ala. 108, 47 South. 201.
¶3In several clearly expressed special charges, given at the instance of the defendant, the jury were advised "that they could not convict the defendant, unless they were convinced of his guilt' beyond a reasonable doubt and to a moral certainty. It has been often ruled here “that a • probability of innocence is the equivalent of a reasonable doubt of guilt.” — Sanders v. Davis, 153 Ala. 375, 385, 44 South. 979; Bones v. State, 117 Ala. 134, 139, 23 South. 138; Whitaker v. State, 106 Ala. 30, 35, 17 South. 456, and other authorities therein cited. Reasonable doubt and probability of innocence (the latter occurring in charge 12), both having reference to the state and degree of assurance requisite to justify a conviction of an accused, being, in law, equivalent, the court was not obliged to reiterate, in merely different language, the same idea it had expressed, at defendant’s instance, to the jury; and hence the court committed no prejudicial error in refusing charge 12. This court has heretofore approved charge 12; but it has not.heretofore taken account of the fact, present on this appeal, that the court, in other special charges given for the defendant, instructed the jury with respect to the approved equivalent of the very essence of charge 12. As they view the matter, any other conclnsion would jeopardize solemn judgments by a mere play upon words.
¶4Aside from this, however — independent of it — they are convinced from the record that the verdict of the jury would not have been different, had special- charge *1512 been given to the jury, instead of refused. Being so convinced, they conceive it to be their duty to apply in this case, as the court did in Pope v. State, 174 Ala. 63, 57 South. 245, the first rule expressed in this provision of the statute (Code, § 6264), “But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant,” and as interpreted in Dennis’ Gase, 118 Ala. 72, 79, 23 South. 1002, 1004, as follows: “We are of the opinion the proper construction of this section of the Code is that the court must be satisfied that the verdict of the jury would not have .been different if the charge had been given.” They therefore think the judgment and sentence of- law pronounced in the city court should be affirmed.