115 Ala. 42
Ala.
1896
BRICKELL, C. J.

The commissioners having failed to draw a grand jury for the term, the court had authority it was a duty to exercise, to supply the omission by the entry of an order on the minutes directing the sheriff to summon eighteen persons qualified to serve as grand jurors, from whom a grand jury were to be selected.— Cr. Code of 1886, § 4316. The order was made, and from the persons summoned, the grand jury finding the indictment were selected and organized. If there was irregularity in the execution of the order — in the mode pursued by the sheriff in the selection and summoning of the persons from whom the grand jury were to be selected — not resulting in the introduction of other than good and lawful men, the irregularity would not vitiate the indictment. But we do not perceive that irregularity intervened. The sheriff, in anticipation that the order would be made, said to qualified citizens of the *50county, if they were present when it was ma.de, he would summon them to serve as grand jurors. This was not of itself an irregularity — the sheriff had the power to select from the qualified citizens of the county, whom he would summon, and if the power was not abused, or misused', the mode in which he made the selection was immaterial.

2. The indictment comprehended each degree of criminal homicide, and there was no error in the instruction, or rather observation to the jury, that there could be a conviction only of murder in the first degree, or of murder in the second degree, or of manslaughter. When an indictment is of this form and legal effect, we presume it is not unusual for the presiding judge in the commencement, or in the course of his instructions to the jury, to state that it comprehends each degree of criminal homicide, of which there may be conviction. The instructions given at the instance of the State, are obviously free from error, and in argument the appellent has not drawn their correctness in question.

' 3. The instructions requested, numbered respectively, 1, 3, 27, 29, 42, 43, 75, 76, have relation to the sufficiency of circumstantial evidence to support a conviction. The test of the sufficiency of circumstantial evidence is, whether the circumstances as proved, produce a moral conviction to the exclusion of all reasonable doubt of the guilt of the accused — whether they are incapable of explanation upon any reasonable hypothesis consistent with his innocence. In Ex parte Acree, 63 Ala. 234, the principle as it may be collected from approved text writers, and the current of judicial decision, was announced by Stone, J.: “The humane provision of the law is, that upon circumstantial evidence there should not be a conviction unless to a moral certainty, it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure of proof the law requires.” The refusal of a charge requested embodying this language; was declared error in Gilmore v. State, 99 Ala. 154. The instructions 1 and 42 are correct statements of the principle, and it was error to infuse them. The other of these *51instructions are misleading or argumentative, and were properly refused.

4. In Burton v. State, 107 Ala. 109, we held it error to refuse an instruction requested by the defendant expressed in this language : “Before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant’s guilt, but that it is wholly inconsistent with any other rational conclusion ; and unless the jury are so convinced by the evidence of the defendant’s guilt, that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then, they must find the defendant not guilty.” In Brown v. State, 108 Ala. 18, the refusal of an instruction expressed in the same words, was declared reversible error. We construed the instruction as not meaning more than that the guilt of the accused must be fully proved — as usually expressed, proved beyond a reasonable doubt; and that degree of proof is not reached unless all reasonable supposition of innocence is excluded. The instructions requested numbered 64 and 66, though not in all particulars employing the same verbiage, in equivalent words, assert the same proposition contained in the instructions referred to, and there was error in the refusal of them. The instruction numbered 67 was properly refused — the substitution of the word dare for the word venture as employed in the other instructions, was of misleading tendency.

5.. There can be no doubt that a probabilh ' of innocence is just foundation for a reasonable douLu of guilt, requiring an acquittal of the defendant.—Whitaker v. State, 106 Ala. 30, and authorities cited. The instruction numbered 24, asserting that “a probability that some other person may have done the killing, is sufficient to create a reasonable doubt of the guilt of the defendant,” in view of this rule, would be appropriate, if the evidence was circumstantial, pointing to the defendant, and to some other person not acting in concert with him. Instructions must be construed in reference to the evidence to which they refer. The tendencies of the evidence for the State, were, that two persons, acting in concert, were present at the time of the killing, and that the one or the other fired the fatal shot. The *52probability that-the other, and not the defendant, fired the shot, would not raise a reasonable doubt of the guilt of the defendant. The two were principals, present, aiding and abetting in the commission of the offense, the one firing the fatal shot, in legal contemplation, not more guilty than the other. As to the two, a probability that one and not the other, did the killing, creates no doubt, reasonable or unreasonable, of their equal guilt.

6. In all cases, civil and criminal, unanimity of the jury is essential to a verdict. In Carter v. State, 103 Ala. 93, it was held error to refuse, on request of the defendant, to instruct the jury, that unless each of them was-convinced beyond a reasonable doubt of the guilt of the defendant, a verdict of conviction could not be rendered. This is essentially a different proposition from that requested in the instruction numbered 26, that if either of the jurors had a reasonable doubt, the others were bound t-o yield, and render a verdict of acquittal.

7. The instruction numbered 83, was properly refused. The jury may have had a reasonable doubt whether the defendant was at his house at the time of the occurrences upon which the difficulty originated, and yet satisfied beyond all reasonable doubt, that he was subsequently at the place - of the homicide, a guilty agent in its commission. The instruction numbered 47, in relation to the burden of proving an alibi, and the degree of evidence supporting it, is in accordance with the principles stated in Prince v. State, 100 Ala. 144, and should have been given.

For the errors pointed out, the judgment must be reversed and the cause remanded. The defendant must remain in custody until discharged by due course of law.

Reversed and remanded.