McGLELLAN, J.
— The point raised by the appellant as to the sufficiency and validity of the judgment entry and sentence in the court below has been adjudged against his contention in the case of Wilkinson v. State, ante, p. 23.
*56In a given case proof of the defendant’s good character when considered alone might generate a reasonable doubt of his guilt, while the other evidence in the case would entirely remove the doubt which in the absence of it would arise on a consideration of good character. The charge on this subject refused to the defendant had a manifest tendency to mislead the jury to the conclusion that if the fact that the defendant sustained a good character taken by itself generated a reasonable doubt of his guilt they should acquit him though they might at the same time have found from all the evidence before them that the defendant was guilty beyond a reasonable doubt, the circumstance of his good character to the contrary notwithstanding. This charge was properly refused.— Pate v. State, 94 Ala. 14" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/pate-v-state-6514488?utm_source=webapp" opinion_id="6514488">94 Ala. 14 ; Johnson v. State, Ib. 35 ; Johnson v. State, 102 Ala. 1" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/johnson-v-state-6515536?utm_source=webapp" opinion_id="6515536">102 Ala. 1; Grant v. State, 97 Ala. 85" court="Ala." date_filed="1892-07-01" href="https://app.midpage.ai/document/walker-v-state-6514903?utm_source=webapp" opinion_id="6514903">97 Ala. 85; Thomas v. State, ante, p. 19;. Goldsmith v. State, 105 Ala. 8" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/goldsmith-v-state-6515870?utm_source=webapp" opinion_id="6515870">105 Ala. 8.
The defendant requested the following charge : “I charge you, that every one charged with the commission of an offense against the law is presumed to be innocent until his guilt is established, and the evidence sufficient to convict should not be a mere preponderance of probabilities; but should be so convincing as to lead the mind to the conclusion that the accused can not be guiltless, and if upon the whole evidence the guilt of the defendant is not established to a moral certainty the jury must find him not guilty.” A charge in this language was-refused to the defendant in the case of Murphy v. State, 6 Ala. 845" court="Ala." date_filed="1844-06-15" href="https://app.midpage.ai/document/state-v-murphy-6502331?utm_source=webapp" opinion_id="6502331">6 Ala. 845, and again in the case of Coleman v. State, 59 Ala. 52" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/coleman-v-state-6509884?utm_source=webapp" opinion_id="6509884">59 Ala. 52 ; and in each of these cases the charge was held to be good and the action of the court, refusing to give it to the jury, erroneous. In Mose v. State, 36 Ala. 211" court="Ala." date_filed="1860-06-15" href="https://app.midpage.ai/document/mose-v-state-6506732?utm_source=webapp" opinion_id="6506732">36 Ala. 211, the trial court refused the following charge requested by the defendant: “That unless the evidence against the prisoner should be such as to exclude to a moral certainty every hypothesis but that of his guilt of the offense imputed to him, they must find him not guilty ;” and it was held on appeal that this instruction wms a correct statement of the law and should have been given. Speaking of this charge and the one under consideration taken from the cases of Murphy and Coleman, supra, it was said in the latter case : “These two statements of one and •the same principle have stood as guides, and without *57material impairment, for many years. We liave no intention now' to question them. They are but strong expressions of that full measure of proof which the law exacts, before it will sanction a conviction of a criminal offense. But given nakedly, and without explanation, we fear they may, and sometimes do, produce^ an erroneous impression on the minds of the jury and, after explaining these charges and quoting what was said by the court in Murphy’s and Mose’s cases in explanation and qualification of these instructions, the opinion concludes on this point as follows : “In giving the charges copied from the cases of Murphy and Mose, supra, the courts, to prevent misapprehension, should further declare to the jury, that it is moral, not mathematical, certainty of proof, which the law requires; and should also give in charge the explanation of the language given by this court, in connection with each of the extracts which form the charges requested in this case.” — Coleman v. State, 59 Ala. 52" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/coleman-v-state-6509884?utm_source=webapp" opinion_id="6509884">59 Ala. 52. It thus appears that this court condemned both these instructions as tending to mislead, and it would seem to logically follow that their refusal by the trial court was not error even under the view taken of them in Coleman’s Case. However that may be, the charge taken from Mose’s Case, and said in Coleman’s Case to state the same principle as that embodied in the charge we are now considering, has been repudiated by this court, not merely as misleading, but as affirmatively bad in that it requires to conviction — not moral certainty to the exclusion of every reasonable hypothesis but that of defendant’s guilt, but— that every hypothesis, however unreasonable or speculative, and whether amounting to only a mere possibility or not, must be excluded. — Blackburn v. State, 86 Ala. 595" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/blackburn-v-state-6513444?utm_source=webapp" opinion_id="6513444">86 Ala. 595 ; Little v. State, 89 Ala. 102 ; Garrett v. State, 97 Ala. 18" court="Ala." date_filed="1892-07-01" href="https://app.midpage.ai/document/garrett-v-state-6514879?utm_source=webapp" opinion_id="6514879">97 Ala. 18, 27, and cases cited.
'The charge we have here is open to precisely the same objection. It requires of the jury, before a conviction can be had, belief beyond a reasonable doubt, not only that the defendant committed the offense charged, but further that he cannot be innocent of the offense, which is to say that it-is not possible for him to have committed the crime. This is a degree of certaint}'' which is beyond attainment on human testimony, and which the law'does not require. This-charge w'as condemned as *58misleading — and hence held to have been well refused— in McKleroy v. State, 77 Ala. 95" court="Ala." date_filed="1884-12-15" href="https://app.midpage.ai/document/mckleroy-v-state-6512084?utm_source=webapp" opinion_id="6512084">77 Ala. 95, where the criticism passed upon it in Coleman’s Case was carried to its legitimate result; and we now go further and hold that the proposition it asserts is unsound as well as misleading. The jury need never find that the defendant cannot be innocent; but if they believe his guilt be3’ond a reasonable doubt, they should convict although it may be he is innocent, and although they cannot affirm that he cannot be guiltless. — Pate v. State, 94 Ala. 14" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/pate-v-state-6514488?utm_source=webapp" opinion_id="6514488">94 Ala. 14; Gilmore v. State, 99 Ala. 154" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/gilmore-v-state-6515177?utm_source=webapp" opinion_id="6515177">99 Ala. 154.
This charge was refused to the defendant; “It is not eveiy or any possession of stolen goods 1)3’ a defendant which will authorize the inference of his complicity’ in the crime of larceny, nor, in fact, every such unexplained possession.” It will suffice to say of this charge that it may well be understood to mean that no possession of stolen goods will authorize the inference of guilt even in the absence, of explanation, which, of course, is not the law, and to have given it here would have been especialty injurious because the defendant’s recent possession of the property stolen was clearly shown.
The last charge refused to the defendant — “Good character is admissible in this case to generate a reasonable doubt” — was bad on considerations adverted above.
Affirmed.