¶1 (dissenting).
¶2 The conviction of this defendant of murder in the second degree, with imprisonment for a term of fifty-five years, to all practical purposes constitutes a life sentence.
¶3 Unless the testimony of defendant and his wife are given some degree of credibility, the circumstances of the killing are wholly speculative. Defendant and deceased had been friends for many years. No differences had ever arisen between them so far as this record discloses. Defendant could have had no motive in maliciously killing the deceased. The difficulty must have grown out of the kindly act of defendant in going, in the night, to the aid of deceased as he called at defendant’s home for assistance as to his car. Unquestionably deceased did go to defendant’s house and ask for aid. His car was “dead,” and in a muddy road. Clearly too, defendant obligingly complied, and went on this fatal night to assist defendant in pushing his car. Deceased, their efforts failing, was upset and out of humor, and finally asked defendant to get his own car out and use it for the purpose. Defendant, insisting he could not handle his car well at night and that both cars would get in the mud, declined to do so, and his wife joined in this refusal. Defendant’s version is that at this deceased became angry, used abusive language to him, with a slurring remark to his wife, struck and kicked him, and finally, when the single shot was fired that proved fatal, deceased was about to attack him with a car instrument of some character.. Defendant and his wife are the only eye witnesses, and there is no evidence to the contrary. Defendant also gives explanation of the reason he had his pistol. But details need not be here given.
¶4 True the jury had the right to disbelieve the evidence of both of them. But the State offers nothing that would reflect upon the fact that the origin, at least of all of this trouble, was as stated by defendant. And the witnesses who testify to defendant’s bad character (or most of them), admit defendant was honest and would tell the truth. Upon what theory his character was bad, they leave to speculation, and, indeed, the State’s entire case for a conviction of murder is rested upon speculation.
¶5 The testimony of defendant and his wife, to my mind, has a ring of probability and reasonableness, and viewing the case from all angles, I am persuaded that in no event should a conviction be allowed to stand for the degree of homicide of which this defendant was convicted.
¶6 I recognize the caution that should be observed in disturbing the ruling on a motion'for a new trial. But we have a duty to perform, and in the performance of that duty, in Roan v. State, 225 Ala. 428, 143 So. 454, 460, this Court made use of the following expression that is here directly applicable: “We' may conclude by saying that after allowing the reasonable presumptions in favor of the correctness of the verdict rendered — guilty of murder- in the first degree — we are clear to the conclusion that on the evidence before us the preponderance thereof is against the verdict rendered;. and it is so decided that the *486 verdict should not he allowed to stand for that degree of homicide. McTyeire v. McGaughy, 222 Ala. 100, 130 So. 784.”
¶7 I am constrained to believe, therefore, that the ends of justice require a retrial of this cause, and that the motion to that end should have been sustained. I therefore respectfully dissent.