| Ala. | Nov 15, 1890
— Whether the defendant attempted to drown his wife by holding her head under the water, or whether, in what he did, he'was attempting to rescue her, was the material question of contestation in the trial of this case. The theory of the prosecution was, that the defendant, intentionally upset the canoe in which they were sitting on the water, threw his wife out, and not only made no attempt to rescue her, but held her head under the water that she might drown. She was taken out insensible, but subsequently revived. The contention of the defense was, that the canoe was upset accidentally, and that the defendant exerted himself actively and earnestly to save his wife from drowning. The water was a pond, and not of swimming depth to adults. It was about three feet and two inches 'deep.
This being the issue, it was manifestly competent to prove whether the relations between husband and wife were those of love and affection, or the contrary. Such testimony would shed light on any act or conduct of his that was of disputable ostent. It was a legitimate aid to the jury in arriving at the motive or intent of the accused, in what the testimony satisfies the jury he did, or attempted to do. It follows that, if the defendant uttered the words of bitterness and reproach against his wife which witnesses testified he spoke while in prison, this was competent evidence in rebuttal of his own testimony, previously given, that their relations had all the while been loving and affectionate. The court did not err in receiving this testimony.
In giving the first charge asked by the prosecuting attorney the City Court erred. Its propositions are incompatible. There can not be a belief of defendant’s guilt beyond a reasonable doubt, and, at the same time, a probability of his innocence. Probability is “that degree of evidence, or that appearance of truth, which induces belief, but is not certainty.” We-say any given proposition is probable, when it has more evidence for than against its truth. We use the word evidence-
The fourth charge asked by defendant asserts a correct legal proposition; but no suitor, civil or criminal, can claim, as matter of right, that a charge once given at his request, shall be repeated. It is better and safer, however, if the charge assert a correct legal principle, when viewed in connection with the testimony, that it be given, unless it is an exact copy of one previously given in charge.
The questions raised on the motion in arrest of judgment we need not consider, as they will not probably arise again.
Reversed and remanded.