MORGAN v. STATE

(103 So. 76) MORGAN v. STATE. (4 Div. 5.) (Court of Appeals of Alabama. Dec. 16, 1924. Rehearing Denied Jan. 20, 1925.) 1. Criminal law <&wkey;789(15) — Refusal of instruction as to reasonable doubt held not error. Refusal to instruct that it was not necessary to, raise a reasonable doubt that jury should find from all the evidence a probability of innocence, but that such doubt might arise, even if there was no probability of accused’s innocence in testimony, held not error. 2. Criminal law <&wkey; 1038(1)— Objection to court’s charge cannot be raised for first time on appeal. Objection to court’s . charge cannot be raised for first time on appeal. Appeal from Circuit Court, Pike County; W. L. Parks, Judge. Lockard Morgan was convicted of violating the prohibition law, and he appeals. Affirmed. Charge 7, refused to defendant, is as follows: “(7) If the jury are not satisfied beyond a reasonable doubt, to a moral certainty and to the exclusion of every other reasonable hypothesis but that of the guilt of the defendant, .then they should find him not guilty; and it is not necessary to raise a reasonable doubt that the jury should find from all the evidence a probability of defendant’s innocence, but such a doubt may arise, even 'when there is no probability of his innocence in the testimony, and, if the jury have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to acquit him.” Mark D. Brainard, of Montgomery, for appellant. Charge 7 is a correct statement of law, and should- be' given. Olden v. State, 176 Ala. 6, 58 So. 307. Harwell <3. Davis, Atty. Gen.., and Lamar Meld, Asst. Atty. Gen., for the State. Charge 7 was correctly refused. Edwards v. State, 205 Ala. 160, 87 So. 179. Where no exception is reserved to the court’s oral charge, no question is presented for review. Ex parte State, 204 Ala. 389, 85 So. 785. [MAJORITY — SAMFORD, J.] SAMFORD, J. Charge 7, refused to the defendant, was held good in Olden’s Case, 176 Ala. 6, 58 So. 307, but since that time the Supreme Court has held in the Edwards Case, 205 Ala. 160, 87 So. 179, that charges of this character are not correct statements of the law. This court has in many eases followed the Edwards Case, which we think is the correct rule. Thomas v. State (Ala. App.) 96 So. 182; Rikard v. State, 209 Ala. 480, 96 So. 412; Riley v. State, 209 Ala. 505, 96 So. 599; White v. State, 209 Ala. 546, 96 So. 709; Jones v. State, 209 Ala. 655, 96 So. 867. , Proper predicates • were laid for the introduction of confessions. The rulings on this question were without error. No exception having been reserved to the court’s oral charge, we do not pass upon the objection now made for the first time. Ex parte State ex rel. Smith, 204 Ala. 389, 85 So. 785. We find no error in the record and the judgment is affirmed. Affirmed. 19 Ala. App. 187.