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blamed, lying son of a bitch,' and placed his hand upon or in the direction of his pocket in such a manner as to indicate to a reasonable mind that bis purpose was to draw a weapon, then the defendant was authorized to anticipate and strike first; and it makes no difference if it should turn out that the deceased was in fact unarmed, as the law of self-preservation does not require that the defendant should wait until the weapon was drawn, but he had a right to act upon the reasonable appearance of things.”

W. P. Gaddis, T. L. Bulger, and H. C. Tompkins, for appellant. T. N. McClellan, Atty. Gen., for the State.

On

CLOPTON, J. The first error urged relates to the refusal of the court to grant a change of venue. By the statute, a person charged with an indictable offense, who desires to have his trial removed to another county, must specifically set forth, under oath, the reason why he cannot bave a fair and impartial trial in the county in which the indictment is found. The application must be made as early as practicable before the trial, but may be made, after conviction, on a new trial being granted. Code, 1886, 4485. The homicide was committed in May, 1887. The indictment was returned and filed in court, and the defendant was tried, in August of the same year. this trial he was convicted of murder in the second degree. On appeal the judgment was reversed, in January, 1888. 3 South. Rep. 525. At the February term, 1888, the case was continued at the instance of the defendant. On August 7, 1888, the defendant being present in court, the 15th day of the same month was set for his trial. On the latter day, after the state had announced “ready for trial," application for the change of venue was made for the first time. The reason assigned for the delay is that the defendant was confined in jail until May 3, 1888, and had been unable to secure the information upon which the application is founded.

It is manifest that all the material facts set forth in the affidavit of the defendant in support of the application transpired, if not before his first conviction, certainly before February, 1888, except the election of Powell, a brother of the deceased, and of Parker, who, it is alleged, prepared and circulated petitions to have the defendant denied bail after his preliminary trial, to the office of sheriff and member of the legislature, respectively, August 6, 1888. It does not appear that Powell had qualified and entered upon the duties of his office at the time of the trial of defendant, nor is it shown that he had anything to do with the drawing and summuning the jury, or attempted in any way to prejudice the public mind against the defendant; nor that Parker did anything whatever after his election. Neither does the affidavit show at what time, or in what manner, the defendant obtained information of the facts set forth in the application. The statement that he had been unable to secure the information is very general and vague. The object of the requirement that the application shall be made as soon as practicable before the trial, is that there shall be no delay or unnecessary expense in summoning jurors, and no experimenting upon the chances of the state failing to be ready. It was practicable to make the application, if not at the February term, 1888, at least on the day of the succeeding term when the order was made setting a day for the trial. It is not shown that the defendant was not informed at this time of all the facts alleged in his application. He had then been released from contine ment for three months. "The application must be made as early as practicable before the trial." Being present in court when a future day was set for his trial, and waiving his plea of former acquittal, the defendant should then, in conformity with the statutory requirement, have made the application, or shown reasons for not having done so. As he did not make it either at the February term, or at the next term, when the order was made setting a day for his trial, it came too late on the day of the trial, and after the state had an. nounced "ready." Shackleford v. State, 79 Ala. 26.

It is conceded that if the charge requested by the defendant had instructed the jury, in terms, to acquit the defendant upon its hypothesis being found true, it would be obnoxious to the objection that it pretermits the duty of retreat. Such is the legal effect of the charge, the same as if expressed in terms. It instructs the jury that, if the hypothetical facts are believed, the defendant was authorized to anticipate the deceased, and strike first; in other words, to strike in self-defense. If so authorized, an acquittal should, of necessity, follow. Several charges substantially asserting the same proposition were considered on the former appeal, and held to have been properly refused. Fallin v. State, 83 Ala. 5, 3 South. Rep. 525. The evidence shows that the deceased and the defendant were standing about four feet from each other when the blow was struck, and that defendant was the more powerful man. He himself testified that he could have caught the deceased and prevented bis drawing a weapon. Necessity, real or apparent, to take the life of the deceased in order to prevent grievous bodily harm, is essential to justify or excuse the killing. If the defendant could have safely retreated, or have disarmed the deceased without danger to himself, admitting that he had a weapon, and thus bave prevented injury, and this was believed by defendant, there was no real or apparent necessity to take life.

There is no error in the record. Affirmed.

HICKS 0. STATE.

(Supreme Court of Alabama. January 24, 1889.) 1. PERJURI-INDICTMENT.

An indictment for perjury, which avers that the alleged false oath was taken in a proceeding before one P., who had been duly appointed commissioner by the register in chancery, one w., with authority to take the written testimony of defendant in an action for divorce, naming the parties to such action, and the court in which it was pending, suficiently alleges the substance of the proceedings, under

Code Ala. 1856, $ 3908. 2. SAME-EVIDENCE-COMPETENCY.

The charge of perjury was based on defendant's deposition that she bad seen the defendant in the suit for divorce, which was based on the ground of adultery, in an act of adultery, before her marriage. Defendant's bill of exceptions stated that there was other evidence of adultery after marriage. Held, that it would be presumed that this meant adultery between the same parties; thus rendering defendant's deposition material in the divorce suit, and admissible on the trial for perjury.

*

Appeal from circuit court, Elmore county; JAMES R. DOWDELL, Judge.

An indictment charged that defendant, Ann Hicks, on her examination as a witness,

before P., a duly-appointed commissioner to take testi. mony in a divorce suit "in which one William Shirley was plaintiff, and Annie Shirley was defendant, being duly sworn by said P., who had authority to administer such oath, falsely swore that," at a certain time and place, she saw one M. in the act of adultery; "the matters so sworn to being material, and the oath of said Ann Hicks in relation to such matters being willfully and corruptly false." Defendant demurred to the indictment, because what M. “did could not be material in the trial of a divorce case pending between William Shirley and Annie Shirley;" and, the demurrer being overruled, she pleaded not guilty. On the trial the prosecution offered the defendant's deposition, taken in said suit, in which she swore, in substance, as alleged in the indictment, to an act of adultery between M. (afterwards Mrs. Shirley) and Lewellen Jordan. The bill of exceptions adds: “The said bill in chancery was for divorce on the ground of adultery, and there was other evidence tending to show, in said cause, acts of adultery after marriage. Defendant objected to the admission of said evidence, because the same was not material to the issue being tried in said chancery cause," and she excepted to the overruling of the objection.

T. L. Bulger and Watts & Son, for appellant. T.N. McClellan, Atty. Gen., for the State.

2

SOMERVILLE, J. The indictment, which is one charging the defendant with perjury, substantially follows the form prescribed by the Code. Crim. Code 1886, form No. 67, p. 275; Id. & 3908. The substance of the proceedings in which the alleged false oath was taken is sufficiently averred in the statement that it was before one William Penick, who had been duly appointed commissioner by the register in chancery, one Albert Wilson, with authority to take the written testimony of the defendant in a civil action for divorce pending in the chancery court of Elmore county, in which one William Shirley was plaintiff, and Annie Shirley was defendant. This averment is descriptive of the occasion of the alleged perjury, of the tribunal in which the action was pending, and of the jurisdiction of the officer by whom the oath was administered, and is intended for identification, to show that the oath was not extrajudicial. It is not wanting in any of the elements of reasonable certainty, which is all the law requires. Nor is it required that the materiality of the false oath or evidence should appear upon the face of the indictment otherwise than by general averment. This is all the prescribed form requires, and the form is sufficient. Williams v. State, 68 Ala. 551; Peterson, V. State, 74 Ala. 34; Jacobs v. State, 61 Ala. 448.

The objections to the evidence are not, in our judgment, well taken. The evidence to which objection was taken was properly admitted. The ground of the objection goes to the fact of the materiality of the alleged false oath, it being urged that the fact of the wife's adultery before marriage cannot tend to prove her alleged adultery after marriage; and, this being the fact testified to on which the defendant's perjury was predicated, it is insisted that it was not material to the issues in the divorce suit, which was based on the ground of adultery. The bill of exceptions does not purport to set out all the evidence introduced on the trial, and for this reason the objection must be overruled, because, rather than put the court in error, we must presume that there may have been other evidence omitted from the record which would have rendered that objected to relevant. But, independently of this, the bill of exceptions states that there was other evidence tending to show acts of adultery after marriage. Construing the bill most strongly against the exceptant, in accordance with the settled rule, it must be interpreted to mean, evidence was offered of other acts of adultery between the same parties. The authorities fully settle the admissibility of such evidence as to anterior acts of adultery, for the purpose of proving an adulterous disposition in the persons implicated, which itself tends to prove the particular act charged, as a continuation of the same immoral proclivity. Cross v. State, 78 Ala. 430; Lawson v. State, 20 Ala. 65; 2 Greenl. Ev. (14th Ed.) § 47; and cases cited in brief of attorney general.

The judgment must be affirmed.

CLEVELAND 0. STATE.

(Supreme Court of Alabama. Janu 24, 1889.) 1. HOMICIDE-EvideXcETHREATS.

On a trial for murder, where the defense is that defendant supposed he was shooting another, who had struck him, and gone into a neighboring shop, and, so believing, was acting in self-defense, evidence that such assailant, while in the shop, tried to obtain a weapon, and threatened defendant's life, is' inadmissible, where it is not shown that defendant saw or heard what such assailant did or said, but there is testimony that he could not hear nor see it.

2. SAME-ASSAULT BY THIRD PARTY.

Evidence of another assault by such assailant on the defendant, after the homi

cide, is properly excluded. 3. CRIMINAL LAW-TRIAL-RECEPTION OF EVIDENCE.

Any error in excluding evidence of the assailant's character for violence is cured

by subsequently admitting such evidence. 4. HOMICIDE-TRIAL-INSTRUCTIONS.

A charge that, if a person had time to think, and did think, and after having thought struck the blow as the result of a determination produced by the operation of the mind, then that would be a sufficient deliberation and premeditation, is cor

rect. 5. SAME-SELF-DEFENSE-BURDEN OF PROOF.

Where defendant alleges that he acted in self-defense, a charge placing on the state the burden of proving that he had some other reasonable mode of escape from the encounter, without increasing his peril, real or apparent, is properly refused.

The burden in that respect is on defendant. 6. SAME-DRUNKENNESS'as A DEFENSE.

Though drunkenness may be so excessive as to preclude malice, and reduce the

crime to manslaughter, it cannot require an acquittal.” 7. CRIMINAL LAW--TRIAL-ARGUMENTATIVE INSTRUCTIONS.

An argumentative charge should be refused. 8. SAME-REASONABLE DOUBT.

Defendant requested a charge that it is the jury's duty to reconcile all the evidence, if they can, with the theory that the witnesses have spoken truly, but if the evidence in any portion is conflicting, and on consideration of it all they have a reasonable doubt as to its truth, defendant should have the benefit of the doubt. If the evidence about the truth of which they have a reasonable doubt is favorable to defendant, they should give him the benefit of the doubt, and treat that portion of the evidence as true, while, if adverse, they will still give him the benefit of the doubt, and disregard such evidence. Held calculated to confuse and mislead, and properly

refused. 9. SAYE-APPEAL-REVIEW-MATTERS NOT APPARENT OF RECORD.

On postponing a trial, the court ordered that “the special venire drawn for this case appear on the adjourned day. A copy of the indictment and ventre was served on defendant the day before trial. Held, that the objection that the special venire was supplemented with the regular panel for the week first appointed for the trial, while the regular panel should have been that serving for the latter week, would not be considered, where such fact was not shown, and no objection was raised in the court below.

Appeal from city court of Mobile; O. J. SEMMES, Judge.

Ulysses Cleveland was indicted for the murder of Arthur Glennon, by shooting him with a pistol, and was convicted of murder in the second degree. Defendant requested the following charges, which were refused:

"(1) Even if the jury believe from the evidence that the defendant killed Arthur Glennon, but further believe that at the time of the fatal shot he had reasonable cause to believe that it was Tom Popham, who was approaching him, and did so believe, and that Popham was about to take his life, or to do some serious bodily harm; and if the evidence fails to show that the defendant was wrong in bringing on the difficulty, or that the appearance was that he could have retreated without increasing his own apparent dauger,--then the jury ought to find the defendant not guilty.

When the killing is proved to have been done with a deadly weapon, oris admitted by defendant, the burden of showing mitigating circumstances, to the satisfaction of the jury, is on defendant. State v. Byers, (N. C.) 6 S. E. Rep. 420, and note. When defendant pleads self-defense, he must establish that defense by a preponderance of the testimony. State v. Welch, (s. C.) Id. 894, and note. See, contra, People v. Coughlin, (Mich.) 35 N. W. Rep. 72. In general, on the burden of proof in homicide cases, see People v. Coughlin, (Mich.) 32 N. W. Rep. 905, and note; Burgess v. Territory, (Mont.) 19 Pac. Rep. 558, and note; Territory v. Rowand, Id. 595; People v. Hill, 3 N. Y. Supp. 564.

2 On the general subject of intoxication as an excuse for crime, see the note to State v. Tatlow, (Kan.) 8 Pac. Rep. 267; Territory y. Davis, (Ariz.) 10 Pac. Rep. 359, and note; Buckhannon v. Com., (Ky.) 5 S. W. Rep. 358, and note; Wilkerson v. Com., (Ky.) 9 S. W. Rep. 836; U. S. v. King, 34 Fed. Rep. 302; Clore v. State, (Tex.) 10 S. W. Rep.

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“(2) It is the duty of the jury to determine, first, whether or not the defendant killed Arthur Glennon. If the evidence fails to exclude beyond a reasonable doubt every other hypothesis than that the defendant killed the deceased, then they ought to acquit him. If, however, the jury find from the evidence, beyond a reasonable doubt, that the defendant killed the deceased, but that he did so in wbat he thought was his own defense, and under circumstances that reasonably induced him to believe that he was about to be attacked in a manner calculated to take his life, or to do him some grievous bodily harm, and fails to show that the defendant was in the wrong in bring. ing on the difficulty, or that he could have retreated without increasing his apparent danger, they ought still to find the defendant not guilty.

* (3) Before the jury can find the defendant guilty, they must be satisfied of his guilt beyond a reasonable doubt. A reasonable doubt exists in that state of the case in which, after consideration of all the evidence, the minds of the jurors are left in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. It is not sufficient to establish a probability, though a strong one, that the fact charged is more likely to be true than the contrary, but the evidence must establish its truth as a moral certainty,—a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. Such conviction to a moral certainty is the state of belief wbich, considered by itself, without reference to the thing believed in, and as a feeling, is a feeling of satisfaction,-an easy and pleasant feeling. When we are convinced to a moral certainty, we are satisfied, and wish for no further proof. When we doubt, we are dissatisfied, and want more information. If a juror feels any uneasiness whatever as to the truth of the fact in saying guilty, and feels any desire for further evidence, he has a reasonable doubt under the law, and must find for acquittal.

“(4) If the jury believe from the evidence that the dant, at the time he fired the pistol, was so drunk that he was incapable of entertaining malice, they cannot find him guilty as charged in the indictment.

“(5) It is the duty of the jury to reconcile all of the evidence, if they can, with the theory that the witnesses have spoken truly in every respect; but, if they find that there is a conflict in any portion of the evidence, and if, on consideration of the whole evidence, they entertain a reasonable doubt as to the truth of that evidence, they should give the defendant the benefit of that doubt. If the evidence, about the truth of which they entertain a reasonable doubt, is favorable to the defendant, they should give him the benefit of that doubt, and treat that portion of the evidence true; while, if such portion of the evidence is adverse to the defendant, they will still give him the benefit of that doubt, and discard such evidence from their consideration."

Defendant appeals.

G. L. & H. T. Smith, for appellant. T. N. McClellan, Atty. Gen., for the State.

STONE, C. J. In the organization and impaneling of the jury in this case, no objections were made, nor exceptions reserved, in the court below. It is objected before us that, when the defendant was put on trial, the venire from which the jury was to be chosen was not the venire the law contemplates and requires in such cases. On Friday, June 22d, the case was set for trial on Monday, July 2d, and an order was made for 100 jurors, including the regular panel, to be summoned to appear before the court on that day, “and that a list of said jurors, and a copy of the indictment, be served on the defendant one entire day before the trial.” The court thereupon proceeded to draw from the jury-box of the city court, in conformity to the statute, “sixtyfour names for the special renire, in the case of the State of Alabama against Ulysses Cleveland, who is under an indictment charging him with the crime

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