Appellant was convicted before the police justice of the city of Gulfport upon affidavit charging him with assault and battery. He appealed the case to the circuit court of Harrison county, and was convicted and sentenced, from which judgment he prosecutes this appeal.

The only assignment of error that appellant makes in this case *562is that the trial court erred in refusing the following instruction: “The court instructs the jury, for the defendant, that the burden of proof is on the city to prove the defendant guilty beyond every reasonable doubt before they can convict him, and if, after consideration of all the evidence in this case, there arise from the evidence in the case two reasonable theories, one theory that the defendant is guilty as charged, and one theory that the defendant is innocent, then it is the duty of the jury to adopt the theory that the defendant is innocent, and acquit him, even though the theory that defendant is guilty is more probably supported by the stronger evidence.” This instruction, in substance, is the same charge that was condemned by this court in the case of Runnels v. State, 96 Miss. 92, 50 South. 499.

The above opinion is adopted by the court.

The judgment is affirmed.