riíICKELL, C. J.
1. Irregularity in the organiza[574] tion or impannelling of a petit jury, is waived, if objection because of it is not made before entering on the trial. If first presented on error, as in the present case, as cause for the reversal of a judgment of conviction, it comes too late. It is not necessary, therefore, to decide whether in the organization of the petit jury, in the events which had occurred, there was regularity or irregularity. — 1 Thompson on Trials, § 113.
2, Larceny of any one of the domestic animals enumerated in the statute, or the marking or branding of them with intent to defraud, or altering or defacing a mark or brand, is a felony. — Or. Code, §§ 3789-3831. The several offenses are of the same general nature, belong to the same family of crimes ; and the mode of trial, hature and degree of punishment are the same. Joining, or including them in different counts of the same indictment, is sanctioned by the rules of che common law as it prevails in this State, and bv long usage. — 1 Brick Dig. 520, §§ 750-51 ; 3 Brick. Dig. 281, § 474. The theory on which the joinder proceeds, is, that each count alleges a distinct, substantive offense ; but in practice, it is generally intended to meet the different phases in which tñe evidence may present the same offense.— Adams v. State, 55 Ala. 143 ; Orr v. State, 107 Ala. 35.
3. In Mayo v. State, 30 Ala. 32, it was said: “When two distinct felonies, are charged in different counts, it is not a matter of legal right pertaining to the accused, that the State should be compelled to elect for which one of the offenses it will prosecute ; nor will the court compel such election, when the two counts are joined, in good faith, for the purpose of meeting a single offense. It is a practice sanctioned by common custom, and by the law, to charge a felony in different ways, in different'counts of the indictment, so as to provide for the different phases which the evidence may present upon the trial; and when such is the bona fide purpose of the joinder of counts, the court never exercises its power of quashing the indictment or compelling an election.” After citing many authorities in support of the proposition, the court proceeds : 1 ‘The principle to be extracted from these authorities is, that the court should always interpose, either by quashing the indictment, or by. compelling an election, when an attempt is made, as manifested by either the indictment or the evidence, to [575] •convict the accused of two or more offenses growing out of distinct and separate transactions ; but should never interpose in either mode, when the joinder is simply designed and calculated to adapt the pleading to the dif-„ ferent aspects in which the evidence on the trial may present a single transaction.” The doctrine of this case was reaffirmed in Orr v. State, supra, at the last term, and observing it, the several motions of the defendant to compel the State to elect on which count of the indictment it would proceed, or the particular animal which it claimed as the subject of the offense, were properly overruled. Voluntarily, after the evidence was closed, the prosecuting officer elected to proceed on the first count, and for a particular animal, as the subject of the offense, and this was the full measure of the right of the defendant in any event. — Wharton Cr. PI. § 290.
4. The evidence of Stokes that he had seen several sheep of the prosecutor, with the marks changed to the mark of the defendant; was not subject to any just objection. The tendency of the evidence was to fix on the defendant knowledge of the sheep of the prosecutor, and of his mark, a fact material in any phase or aspect of the case.
5. The motio'n made by the defendant on the close of the evidence offered by the State, for the exclusion of the evidence, because of its insufficiency to support a conviction, was properly overruled. On every trial by jury in a civil or criminal case, there may arise a preliminary question, a question of law the court must decide ; and that is, whether the party on whom rests the burden of proof,, has introduced evidence which ought properly to be submitted to the jury, in support of the issue he is bound to maintain. As the principle is expressed by Greenleaf, borrowing the language of Buller, J., in Company of Carpenters, &c. 1 Doug. 375: 1 ‘Whether there be any evidence or not, is a question for the judge; whether it is sufficient evidence is a question for the jury.” — 1 Green. Ev., § 49. The degree of the evidence , whether it must be of such force that in the opinion of the court, the jury could reasonably conclude the issue was proved, or the burden of proof satisfied ; or whether it may ha,ve only a tendency to establish the issue, the necessities of this case do not require us to consider. It is enough to say, there was not that [576] want of criminating evidence — such want of evidence of every fact material to a conviction — as required that the court should withdraw it from the consideration of the jury. The facts and circumstances in evidence, if dissevered and disconnected, may be weak and inconclusive ; but their probative force, when combined, as it was the province of the jury to combine them, under proper instructions from the court, may have satisfied them of the guilt of the defendant. If in their conclusions the jury should err ; if their verdict should be manifestly wrong; if the evidence was hot of that degree justifying a conviction of crime, the court should apply the correction of a new trial.
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riíICKELL, C. J.
1. Irregularity in the organiza[574] tion or impannelling of a petit jury, is waived, if objection because of it is not made before entering on the trial. If first presented on error, as in the present case, as cause for the reversal of a judgment of conviction, it comes too late. It is not necessary, therefore, to decide whether in the organization of the petit jury, in the events which had occurred, there was regularity or irregularity. — 1 Thompson on Trials, § 113.
2, Larceny of any one of the domestic animals enumerated in the statute, or the marking or branding of them with intent to defraud, or altering or defacing a mark or brand, is a felony. — Or. Code, §§ 3789-3831. The several offenses are of the same general nature, belong to the same family of crimes ; and the mode of trial, hature and degree of punishment are the same. Joining, or including them in different counts of the same indictment, is sanctioned by the rules of che common law as it prevails in this State, and bv long usage. — 1 Brick Dig. 520, §§ 750-51 ; 3 Brick. Dig. 281, § 474. The theory on which the joinder proceeds, is, that each count alleges a distinct, substantive offense ; but in practice, it is generally intended to meet the different phases in which tñe evidence may present the same offense.— Adams v. State, 55 Ala. 143 ; Orr v. State, 107 Ala. 35.
3. In Mayo v. State, 30 Ala. 32, it was said: “When two distinct felonies, are charged in different counts, it is not a matter of legal right pertaining to the accused, that the State should be compelled to elect for which one of the offenses it will prosecute ; nor will the court compel such election, when the two counts are joined, in good faith, for the purpose of meeting a single offense. It is a practice sanctioned by common custom, and by the law, to charge a felony in different ways, in different'counts of the indictment, so as to provide for the different phases which the evidence may present upon the trial; and when such is the bona fide purpose of the joinder of counts, the court never exercises its power of quashing the indictment or compelling an election.” After citing many authorities in support of the proposition, the court proceeds : 1 ‘The principle to be extracted from these authorities is, that the court should always interpose, either by quashing the indictment, or by. compelling an election, when an attempt is made, as manifested by either the indictment or the evidence, to [575] •convict the accused of two or more offenses growing out of distinct and separate transactions ; but should never interpose in either mode, when the joinder is simply designed and calculated to adapt the pleading to the dif-„ ferent aspects in which the evidence on the trial may present a single transaction.” The doctrine of this case was reaffirmed in Orr v. State, supra, at the last term, and observing it, the several motions of the defendant to compel the State to elect on which count of the indictment it would proceed, or the particular animal which it claimed as the subject of the offense, were properly overruled. Voluntarily, after the evidence was closed, the prosecuting officer elected to proceed on the first count, and for a particular animal, as the subject of the offense, and this was the full measure of the right of the defendant in any event. — Wharton Cr. PI. § 290.
4. The evidence of Stokes that he had seen several sheep of the prosecutor, with the marks changed to the mark of the defendant; was not subject to any just objection. The tendency of the evidence was to fix on the defendant knowledge of the sheep of the prosecutor, and of his mark, a fact material in any phase or aspect of the case.
5. The motio'n made by the defendant on the close of the evidence offered by the State, for the exclusion of the evidence, because of its insufficiency to support a conviction, was properly overruled. On every trial by jury in a civil or criminal case, there may arise a preliminary question, a question of law the court must decide ; and that is, whether the party on whom rests the burden of proof,, has introduced evidence which ought properly to be submitted to the jury, in support of the issue he is bound to maintain. As the principle is expressed by Greenleaf, borrowing the language of Buller, J., in Company of Carpenters, &c. 1 Doug. 375: 1 ‘Whether there be any evidence or not, is a question for the judge; whether it is sufficient evidence is a question for the jury.” — 1 Green. Ev., § 49. The degree of the evidence , whether it must be of such force that in the opinion of the court, the jury could reasonably conclude the issue was proved, or the burden of proof satisfied ; or whether it may ha,ve only a tendency to establish the issue, the necessities of this case do not require us to consider. It is enough to say, there was not that [576] want of criminating evidence — such want of evidence of every fact material to a conviction — as required that the court should withdraw it from the consideration of the jury. The facts and circumstances in evidence, if dissevered and disconnected, may be weak and inconclusive ; but their probative force, when combined, as it was the province of the jury to combine them, under proper instructions from the court, may have satisfied them of the guilt of the defendant. If in their conclusions the jury should err ; if their verdict should be manifestly wrong; if the evidence was hot of that degree justifying a conviction of crime, the court should apply the correction of a new trial.
6. There is no prescribed formula. — no certain, conventional method, which must be observed in framing instructions to a jury. The instructions must embody correct legal propositions applicable to the issues and. evidence, expressed in clear, unambiguous language, free from all involvement, and from all tendency to mislead or to confuse the jury. These are the essential elements of instructions, as defined by repeated decisions of this court; and instructions requested"wanting in them, have been often declared properly refused. In Bain v. State, 74 Ala. 38, it was held, that a charge requested in these words : ‘ A probability of the defendant’s innocence is a just foundation for a reasonable doubt of his guilt, and therefore for his acquittal, ’ ’ asserted a correct legal proposition. The court said : “Probability is the state of being probable ; and probable has been defined w> be, ‘ having more evidence for than against’ — ‘supported by evidence which inclines the mind to belief, but leaves some room for doubt’ — Webster’s Diet.; Worcester’s Diet. It clearly involves the idea of preponderance of evidence, as used in connection with testimony. Manifestly, if the evidence preponderates in favor of the prisoner — that is, if the evidence in his favor outweighs or overbalances that against him — it is impossible for a jury not to entertain a reasonable doubt as to his guilt.” There are a number of decisions since, approving of this principle or doctrine. This is the first case reaching this court, in which there has been the experiment of substituting in such an instruction, other words asserted to be the equivalents or synonyms of probable and probability. In several of the instructions requested and re[577] fused, we find tlie words likely and likelihood, instead of probable and proliability. Whatever may be the 'true significance of these substituted, words, however closely they may in some of their significations approximate the words for which they are substituted, their employment in connection with evidence in courts of justice, is unusual and, to say the least, would tend to confuse, rather than to enlighten and aid the jury. There can. be no assurance that the jury would ascribe to them no other significance than that which is attached to probable and probability, when applied to the evidence they are to consider. While, as we have said, there is no formula, no conventional method, to which instructions must conform, it is essential that the language in which they are expressed be not ambiguous, but be clear, accurate and precise in its meaning; and an instruction which has a tendency to mislead, or to confuse the jury, if aofe explained so as to free it of this tendency, may be properly refused. There was no error in the refusal of the several instructions to which we are referring.
In every criminal case., the burden rests upon the prosecution to show beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis, every fact or circumstance necessary to fix the guilt of the accused. In the present case, if the conduct of the accused, i. e. his acts as developed in the evidence, was explainable upon a reasonable hypothesis consistent with his innocence, there was reasonable doubt of his guilt, entitling him to an acquittal. — Jones v. State, 90 Ala. 629.- This is the proposition embodied in the instruction, marked “E”, and its refusal was error.
For the error pointed out, the judgment must be reversed and the cause remanded; the defendant will re-mainin custody until discharged-by due course of-law.