The charge asked in this case asserts a correct legal proposition, and should have been given, if there was any evidence before the jury tending to prove “ that the defendant had a claim, honestly entertained, to the stick of timber in question.” — 2 Whar. Amer. Cr. Law, §§ 1769, 1770; Spivey v. The State, 26 Ala. 103; Kirksey v. Fike, 29 Ala. 208.
There was some testimony tending to show that defendant had some claim to the timber, under his alleged purchase from the “Jordan boys.” Whether he removed the timber under this claim; whether he honestly believed he acquired the timber by virtue of his alleged purchase; or whether he was resorting to this claim of purchase as a pretext, were questions for the consideration of the jury. To the presiding judge the testimony given may seem weak, or suspicious, or may appear to be entirely overborne by other testimony more satisfactory to his mind. The law has not made him the judge of the weight of evidence. If the testimony be legal, and pertinent, and tend, no matter how feebly, to establish auy material fact in the issue, it is the right of the prisoner to have it passed upon under an appropriate charge to the jury. — -1 Brick. Dig. 338, § 42; Traum v. Keiffer, 31 Ala. 136; Bank of Montgomery v. Plannett, 37 Ala. 222; M. & O. Railroad Co. v. Hopkins, 41 Ala. 486; Dill v. The State, 25 Ala. 15. The charge should have been given.
Judgment of the Circuit Court reversed, and cause remanded. Let the prisoner remain in custody, until discharged by due course of law.