Gilbert v. State , 21 Ala. App. 672 ( 1926 )

In the view we take of this case, we may pretermit a discussion of all of the exceptions reserved or rulings made during the conduct of the trial of this appellant, other than the overruling of his motion for a new trial. We have carefully read and considered all the evidence adduced on behalf of both the state and defendant (appellant), and without discussing same in detail we are led to quote and approve as applicable in all respects here the following observations of Bricken, P. J., in the opinion in Gilbert v. State, 104 So. 45, 20 Ala. App. 565, to wit: "It is manifest that the proof in this case falls far short of the convincing, satisfying evidence necessary to overcome the presumption of innocence which under the law attended this accused. The offense charged was a grievous one, and certainly resort to suspicion, speculation, or conjecture should not be indulged in order to foist the crime upon this defendant." We may remark that the appellant in the Gilbert Case quoted from was jointly indicted with the appellant here, and, while there are some slight differences in the testimony in the two cases (they being tried separately), yet after a careful study we are convinced that the gross inculpatory effect of the testimony in this case against this appellant is no stronger than was the testimony in the Gilbert Case, supra, against the appellant there. For the error in overruling the motion for a new trial, the judgment is reversed, and the cause remanded.

Reversed and remanded.