When

of murder." No objection is pointed out to this part of the proceeding. When the day for the trial (July 2d) arrived, the state not being ready, the hearing of the cause was postponed two weeks, and reset for trial on Monday, July 16th. The court thereupon ordered of record "that the special venire drawn for this case appear on that day." The italics are our own. the day, second appointed, arrived, no objection was raised to the venire, and the court proceeded to impanel a jury, and to try the cause. It is objected here that the venire put on the defendant, from which to select a jury, was composed of the special venire of 64 names drawn for the occasion, supplemented with the regular panel for the week first appointed, (commencing July 2d,) whereas it is contended that the regular panel should have been that one which was serving during the week of the trial. We hold it unnecessary to consider this question, for two reasons: First, no objection was raised in the court below; second, it does not appear that the regular panel of the week commencing July 2d was a part of the venire put on the defendant. The order for the "special venire" to appear on the day second appointed is persuasive to show the contrary. We cannot presume error, and parties complaining of the court's rulings must not leave us in doubt or uncertainty as to what that ruling was. It is shown in the judgment entry that a copy of the indictment and of the venire was served on the defendant one entire day before the trial. We must presume this was the venire from which the selection was made.

Defendant was convicted of the murder of Arthur Glennon, the finding being that he was guilty of murder in the second degree. As between the defendant and Glennon, there is no attempt to show either excuse or extenuation. Deceased does not appear to have given any offense, and the only testimony on the subject of their social relations tends to show they were friendly. The defense relied on was that the defendant thought he was shooting one Popham; that, so believing, he was acting in self-defense; and hence should have been acquitted.

The homicide was committed under an awning, or on a sidewalk, in the city of Mobile, and at night. All the testimony is that the night was dark. The awning extended across two business houses, separated by a hallway, with communication from one to the other by the rear of the hallway. One of the business houses was a barber-shop, with its front folding door half open. There was a light in the shop. The other business house was a drinking saloon, having lights, but the front door was closed. The saloon was west of the barber-shop. The homicide was in front of the barber-shop, but the proof is silent whether the light from the shop shone on the parties. The implication probably is that it did not. There was a vacant lot adjoining the barber-shop on the east, fenced across the front.

At the first inception of the difficulty, or of that which it is contended led to it, four or more persons were under the awning,-all, or most of them, in front of the barber-shop. Defendant was standing leaning against an awning post. Some foolish words of bravado passed between him and one Spencer, not allowed to be specially proved, and there was some proof that defendant then drew a pistol. The proof was by several witnesses that defendant then had a pistol. At this stage the proof was by Popham himself that he told defendant not to do that, and struck him or shoved him, and then ran into the barber shop. It is not shown that defendant moved from his position until after the homicide.

There is, as is generally the case, great uncertainty of proof as to the time elapsing between Popham's retreat or entrance into the barber-shop and the firing of the pistol shot. Most of the witnesses, who testified on this subject, were more or less intoxicated. They vary, in their estimate of the time, from a few seconds to several minutes. Popham's statement was that it was as much as three or four minutes. He was in the saloon when he heard the re

port of the pistol, but was on the eve of opening its front door, and going out. He immediately went out. There is equal contrariety of statement as to the direction from which Glennon, the deceased, approached, and appeared on the arena. It is variously testified that he approached on the sidewalk, up the Spring Hill street or road, from the west; that he came from Dauphin street on the east; and one of the witnesses testified that he approached Cleveland, the defendant, from the direction of the barber-shop. This would be from the north. Now, all this testimony was material only on the inquiry whether the defendant had reasonable ground for believing that it was Popham, and not Glennon, who approached him as presently shown.

The testimony is substantially agreed on the following facts: Immediately preceding and at the time the fatal shot was fired Cleveland, the defendant, was standing or leading against one of the posts of the awning, not within the range of the light from the barber-shop; that Bullock and Soles were standing and conversing a short distance-say six or eight feet-from him; that Glennon, the deceased, approached him with ordinary step, with both hands behind him, and peered or looked closely into his face, and then either stepped back or threw his head back; and, without a word spoken by either, the defendant fired and killed him. There is an absence of testimony that Glennon approached either hurriedly or excitedly, that he changed the position of his hands, or attempted to do so, or made any other hostile demonstration. think the testimony shows that defendant had a pistol up to the time of the encounter, and that he got rid of it before his arrest, and that Glennon was without a pistol.

We

It was attempted to be shown that when Popham, after striking or shoving defendant, ran into the barber-shop, and thence into the saloon, he tried to obtain a razor and a pistol, and threatened the defendant's life. This testimony, on objection, was all ruled out; there being no testimony that defendant either saw or heard, or could see or hear what Popham did or said. In fact, the testimony was that, standing where he was, he could neither see nor hear what was said or done. To be admissible, this testimony must have tended to excuse or palliate the homicide afterwards committed. On the theory on which the defense was rested, any hostile act or declaration by Popham, of which defendant had knowledge, was legal evidence. That which he did not and could not know could not have influenced his conduct, and was rightly ruled out. Burns v. State, 49 Ala. 370; Rogers v. State, 62 Ala. 170. For the same reason, Popham's assault on Cleveland, after the homicide, could not have shed any light on the latter's guilt, and all testimony in regard to it was rightly excluded.

We consider it unnecessary to pronounce on the ruling of the trial court in first disallowing proof of Popham's character for violence and blood-thirstiness. At a later stage of the trial, when additional testimony had been given in, the court permitted this species of proof to be made. This healed the first error, if any had been committed. We think the court did not err in the definition of violent and blood-thirsty disposition, which may become a factor in solving the problem of self-defense. Pritchett v. State, 22 Ala. 39; Fields v. State, 47 Ala. 603; Eiland v. State, 52 Ala. 322; Bowles v. State, 58 Ala. 335; Roberts v. State, 68 Ala. 156; De Arman v. State, 71 Ala. 351; Lang v. State, 84 Ala. 1, 4 South Rep. 193.

Before entering upon the charges in detail, it may not be out of place to summarize certain principles, which we have often reiterated as indispensable to the plea of self-defense. The man-slayer must be free from fault in bringing on or provoking the difficulty. The onus of disproving this freedom from fault is not on the state. He must be exposed to present impending peril; that is, he must be presently exposed to imminent danger of losing his life, or of suffering grevious bodily harm, or must reasonably appear to be so, from which he has no other reasonable mode of escape, without apparently

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increasing the imminence of his peril. The burden of proving this is on him. De Arman v. State, 71 Ala. 351; Storey v. State, Id. 329. One species of murder in the first degree, as defined by our statute, is a homicide "perpetrated by * * * any kind of willful, deliberate, malicious, and premeditated killing." The trial judge, in his general charge, defined these several qualifying adjectives. Mitchell v. State, 60 Ala. 26. After defining the word "premeditated," he added: "It must be deliberate. That means about the same thing,-that the party must intend to take the life of the person before he takes that life.' There was an exception reserved to this definition. As part of the same paragraph, the court added: "If a person had time to think, and did think, and after having thought he 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." This, we think, is a very correct definition of the two adjectives, "deliberate" and "premeditated." One of the definitions of the verb "to premeditate," is "to deliberate." Webst. Dict.; Imperial Dict. We must construe the charge as a whole, and not in detached sentences. Williams v. State, 83 Ala. 68, 3

South. Rep. 743.

We are aware that some courts have given a different and more exacting definition of the word "deliberate," as a constituent of statutory murder. See authorities collected in note, 5 Amer. & Eng. Cyclop. Law, 520. Other courts, it will be seen, have agreed with us. Our own rulings were strictly followed by the city court. They have been so clearly enunciated, and so often repeated, that we have no wish to depart from them. We have not found that they work injustice. Ex parte Nettles, 58 Ala. 268; Judge v. State, Id. 406; Mitchell v. State, 60 Ala. 26; Ex parte Brown, 65 Ala. 446; Smith v. State, 68 Ala. 424; Tidwell v. State, 70 Ala. 33; Williams v. State, 83 Ala. 16, 3 South. Rep. 616; Lang v. State, 84 Ala. 1, 4 South. Rep. 193. Under the rules just declared, the city court did not err in giving any of the charges asked by the prosecuting officer.

Of the charges asked by the defendant, the first and second were properly refused, because they improperly placed on the state the burden of proving that defendant had some other reasonable mode of escape from the encounter, without increasing his peril, real or apparent. The duty and burden were on the defendant to show the excuse and necessity for taking life; and, to make that excuse good, the law required him to prove that he was in present impending peril of losing his life, or of suffering grievous bodily harm, or that he reasonably appeared to be so, and that he had no other reasonable mode of escape, without increasing his peril, or that the circumstances justified the belief that such was the case. Ex parte Brown, 65 Ala. 446.

The third charge asked is an argument, and was rightly refused on that account. Lang v. State, 84 Ala. 1, 4 South. Rep. 193; City Council v. Townsend, 84 Ala. 478, 4 South. Rep. 780. The indictment in the present case is in the Code form, and charges the crime of murder. That charge embraces the two degrees of murder and the two degrees of manslaughter. Now, while drunkenness may be so excessive as to preclude the entertainment of malice, and hence may, in extreme cases, reduce a homicide from murder to manslaughter, it does not call for an acquittal.

Charge 4 was rightly refused. Ford v. State, 71 Ala. 385; Tidwell v. State, 70 Ala. 33; Fallin v. State, 83 Ala. 5, 3 South. Rep. 525; Morrison v. State, 84 Ala. 405, 4 South. Rep. 402.

Charge 5 was calculated to confuse and mislead, and was rightly refused on that account, if for no other. Gunter v. State, 83 Ala. 96, 3 South. Rep. 600. Affirmed.

MURPHY v. STATE.

(Supreme Court of Alabama. January 31, 1889.)

1. CRIMINAL LAW-QUASHING INDICTMENT-FORMATION OF GRAND JURY.

Under Code Ala. 1886, § 4445, declaring that no objection can be taken to an indictment on any ground going to the formation of the grand jury, except that the jurors were not drawn in the presence of the proper officers, it is proper to overrule a motion to quash an indictment because a sufficient number of names to form both the grand and petit juries were drawn, and the grand jurors were then drawn from them, instead of drawing the names for the grand jury and then the names for the petit jury, as required by Acts Ala. 1886-87, p. 151, § 4.

2. GRAND JURY-DRAWING AND IMPANELING.

Code Ala. 1886, § 4445, is not repealed by the later statutes regulating the drawing and impaneling of juries.

Appeal from circuit court, Elmore county.

T. N. McClellan, Atty. Gen., for the State.

STONE, C. J. The jury law approved February 28, 1887, was in force in Elmore county at the time the grand jury was drawn and organized which preferred the indictment in this case. Sess. Acts 1886-87, p. 151; Code 1886, 84299, note. The sole question raised on this appeal is that the grand jury was not drawn according to the provisions of the statute. The alleged error is as follows: The statute (section 4) provides that the jury commissioners shall first draw the requisite number of names who shall constitute the grand jury, and "next the names of the requisite number of persons to serve as petit jurors." This statutory regulation was not conformed to in the present case. On the contrary, the jury commissioners first drew a sufficient number of names for both grand and petit jury service, and then selected from the names so drawn the requisite number to serve as grand jurors. From the names so selected the grand jury was organized. These are the admitted facts. The defendant had been arrested, and was in custody, under the charge for which he was indicted, tried, and convicted. When the venire was called, and before any steps were taken in the organization, the defendant challenged the array, for the irregularity above pointed out. He proved the facts as averred, and they were not controverted, The court overruled the motion to quash the venire, organized the grand jury from the names so selected, and the defendant excepted.

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We have several times held that the later statutes, regulating the drawing and impaneling of juries, have not repealed section 4445, Code 1886, (section 4889, Code 1876.) That section declares that "no objection can be taken to an indictment, by plea in abatement or otherwise, * on any ground going to the formation of the grand jury, except that the jurors were not drawn in the presence of the officers designated by law." Abernathy v. State, 78 Ala. 411; Harrington v. State, 83 Ala. 9, 3 South. Rep. 425. And our uniform ruling has been to disallow all defenses, save one, which rest on irregularity in the drawing or impaneling of the grand jury, except the statutory ground that they were not drawn in the presence of the officers designated by law." Dotson v. State, 62 Ala. 141; Bales v. State, 63 Ala. 30; Cross v. State, Id. 40; Green v. State, 73 Ala. 26; Nixon v. State, 68 Ala. 535. The additional exception referred to above is where there is some order of the court, or some action of the presiding judge, appearing of record, and relating to the organization of the grand jury, which is without warrant in the statute, or is contrary to its provisions. Cross v. State, 63 Ala. 40; Billingslea v. State, 68 Ala. 486; Posey v. State, 73 Ala. 490. Under our several rulings we hold that the circuit court did not err in overruling the motion to quash the venire.

While we feel constrained to affirm the judgment of conviction in this case, we must be permitted to express our regret that jury commissioners ever de

part from the plain letter of the law in the matter of drawing juries. They should first draw the requisite number of grand jurors, and, having done so, they have no authority whatever for changing the names, no matter how honest or patriotic their motives may be. The law has given them no such power or discretion. We have no grounds for imputing improper motives in the drawing under consideration, but suppose the commissioners intended to subserve the public good. That is not a sufficient reason. The legislature refused to confer this power, and we must presume they withheld it for good and sufficient reasons. It is a dangerous power, and might, in the hands of corrupt or scheming men, become an instrument of very great abuse. The inquiry presents itself whether some step should not be taken to prevent a continuance of the abuse.

Affirmed.

HOUSTON v. FAUL.

(Supreme Court of Alabama. January 31, 1889.)

1. EQUITY-REFORMATION OF DEED-MISTAKE.

When a mistake is made in the description of land in a deed and mortgage, equity will reform the conveyances so as to make them express the real agreements. 2. SAME-JURISDICTION-FULL RELIEF.

When equity has acquired jurisdiction to reform the writings it will retain it and grant full relief.

Appeal from chancery court, Jefferson county; THOMAS COBBS, Judge. Bill by William Faul against Robert E. Houston and others to have a mistake in the description of land in a deed and mortgage corrected. Complainant sold certain lands to the defendants and others, and made a mistake in describing the lands so sold. The same mistake was made in the description of said lands in the mortgage, which the defendants made to the appellee to further secure the payment of the unpaid purchase money. When the mistake was discovered, complainant offered to correct the mistake by making a corrected deed. This offer was declined by the defendants, and they refused to make the correction in the mortgage given by them. Complainant then made and tendered a corrected deed, conveying the lands which were originally intended to be conveyed, and properly described in this tendered deed; but the defendants declined to receive this deed. Complainant thereupon filed his bill, praying for a correction and a foreclosure of the mortgage, and tendered a corrected deed. The defendants filed a motion to dismiss the bill for the want of equity, and, while this motion was pending, without having been argued or passed upon by the court, the defendants demurred to the bill on the ground of the want of equity; that the bill did not show a case in which equity would give relief, the mistake having been made through the carelessness or negligence of the complainant or his attorney; that the complainant had an adequate, full, and complete remedy at law, -a misjoinder of parties, and on the ground of multifariousness in asking for the correction and the foreclosure of mortgage in the same bill. The court overruled the demurrer, and held that the bill contained equity. The defendants appeal. Garrett & Underwood, for appellants. Martin & McEachin, for appellee.

STONE, C. J. Parties, in attempting to make a contract, sometimes appear to have agreed, when, on closer inquiry, they discover they have not. They misunderstand each other, either as to the subject-matter or as to some term of the agreement. There is, in such case, an absence of that indispensable element of all contracts,-the concurring assent of two minds. Sanford v. Howard, 29 Ala. 684. When this is the case, and it is sufficiently shown, any court having jurisdiction will declare there is no contract. When, however, the v.5so.no.19-28