Ex parte Davis

SOMERVILLE, J.

— We concur in the view of the Court of Appeals that the verdict was valid in form and in substance, and that it very clearly is not within the influence of the decision in Perry v. State, 149 Ala. 41, 43 South. 18.

Pretermitting any consideration of the merit of the view that the refusal of the charge in question could be treated as error without injury, we entertain no doubt as to tbe impropriety of tbe charge, and bold that it was properly refused. It has been repeatedly condemned as invasive of tbe province of tbe jury, and also as misleading. — Walker v. State, 117 Ala. 42, 23 South. 149; Morris v. State, 27 South. 336 (imperfectly reported in 124 Ala. 46); Moss v. State, 152 Ala. 30, 36, 44 South. 598; Campbell v. State, 182 Ala. 18, 62 South. 57 (headnote 12); McClain v. State, 182 Ala. 67, 62 South. 241 (headnote 8).

In Walker v. State, 153 Ala. 31, 45 South. 640, it was held error to refuse such a charge, entirely overlooking tbe three previous rulings to tbe contrary; and Walker’s Case, 153 Ala. 31, 45 South. 640, was followed without comment in Simmons v. State, 158 Ala. 8, 48 South. 606; and also in Roberson v. State, 175 Ala. 15, 57 South. 829.

It results that Walker’s Case, 153 Ala. 31, 45 South. 640 (headnote 8), Simmons’ Case (headnote 10), and Roberson’s Case (headnote 4), must be and are expressly overruled; and tbe ruling in Walker’s Case, 117 Ala. 42, 23 South. 149 (headnote 12), is again declared to be correct and authoritative.

Writ denied.

All tbe Justices concur.