STONE, J. —
Adultery and fornication, while of the same grade, are essentially different offenses. To commit the former, one of the parties, at least, must be, at the time, a married person. Whether, if one of the offenders be married, and the other single, the latter commits the offense of adultery or fornication, the authorities are not in entire harmony. See Smitherman v. State, 27 Ala. 23; 2 Bish. Cr. Law, §§ 11, 12, and notes. The better opinion, however, seems to be, that, in such case, the married offender is guilty of adultery, and the unmarried one of fornication. The offense of fornication proper is committed when neither of the offending parties is married.
In prosecutions for adultery, marriage is a necessary ingredient of the offense, that must be proved. Declarations and conduct, holding out to the world that such relation does exist between parties who are living together, is competent evidence. — See Langley v. State, 30 Ala. 586. Reputation, or general repute, on the other hand, is not legal proof of marriage. — Morgan v. State, 11 Ala. 289.
2. In criminal prosecutions, as in ah other jury trials, the weight and sufficiency of the evidence are questions for the jury, under appropriate instructions from the court. The measure of proof to authorize conviction, in a criminal trial, is greater than is required in civil suits. In the former, the law requires that the- guilt of the accused shall be fully proved. It is not enough that the weight of evidence points to his guilt. It must do more. It must point to his guilt with such force and certainty as to exclude every reasonable hypothesis of innocence. Unless the jury are satisfied, beyond all reasonable doubt, of the guilt of the accused, it is their duty to acquit. — 1 Brick. Dig. 504. We_ think' the charge given laid down a guide for the jury, which, if followed, must have misled them. It, in effect, told them, that they might convict, unless they were able to reconcile all the facts proved, so as to show they harmonized with the inno[158]*158cence of tbe defendants. Under this charge, if the jury found any fact or circumstance, suspicious in its character, which was not so explained by the circumstances, or by other testimony, as to leave it consistent and in harmony with the innocence of the defendants, then they could convict. It thus cast on the defendants the duty and necessity of explaining all suspicious circumstances against them, no matter how inconclusive they may have been. Such is not the law. Circumstances may point to a party accused — may create suspicion of his guilt, and there may be no explanation of them; still they may fall far short of producing that satisfied conviction which leaves on the mind no reasonable doubt. The burden is on the State, to prove the guilt of the accused; and is not necessarily on the defendant, to explain suspicious circumstances. True, if the explanation be in his power, and he fail to offer it, this will furnish an additional ground of suspicion; but suspicion, without more, is not enough. Conviction — conviction beyond a reasonable doubt — is what the law requires.
3. The charge asked and refused was too restricted. It omitted some'circumstances, which the jury may have thought suspicious. This charge was rightly ref used. — Adams v. State, 52 Ala. 379.
The judgment of the Circuit • Court is reversed, and the cause remanded. Let the defendants remain in custody, until discharged by due course of law.
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