very causelessly assaulted. That of the accused, in addition to another grave provocation, tended to show that he acted only in prevention or defense of a very dangerous assault about to be committed on him by the defendant. It was for the jury to determine what were the facts. This is the second appeal in this cause. 83 Ala. 26, 3 South. Rep. 551. The testimony on the former trial related to the same transaction, and largely to the same provocation, as that set forth in this record. Commenting on a charge which had been given in that case, this court said: "A killing in sudden passion, excited by sufficient provocation, without malice, is manslaughter, not because the law supposes that this passion made him [the slayer] unconscious of what he was about to do, and stripped the act of killing of an intent to commit it, but because it presumes that passion disturbed the sway of reason, and made him regardless of her admonitions." The meaning of this language is that in the case hypothesized, and in the absence of facts or circumstances tending to prove formed design, sudden passion, engendered by sufficient provocation, raises the presumption that the homicide was the result of the sudden passion, and not of malice or previous intent. This principle may result, at least in part, from another well-recognized principle in criminal administration, that every tangible, reasonable doubt must be resolved in favor of the accused. This presumption, however, may be overcome, and is overcome whenever the facts and circumstances show that the provocation was insufficient in law, or that the killing was the result of malice or previous intent, special or general. Ex parte Nettles, 58 Ala. 268; Ex parte Warrick, 73 Ala. 57; Mitchell v. State, 60 Ala. 26; 3 Brick. Dig. 215; Stewart v. State, 78 Ala. 436. Tested by our former ruling, and by the principles declared above, we hold that charge 3, asked by defendant, ought to have been given. The following charge was given at the instance of the state, and the defendant excepted: "The burden is on the defendant to show that he was justified in striking the blow, or that he acted in self defense." The objection to this charge is that it restricted the defendant to the single ground of justification, and denied to him the right to show that, for sufficient provocation, and in sudden passion caused thereby, he struck without that malice which distinguishes murder from manslaughter. As we understand the charge, its object was to declare the rule as to the burden of proof, namely, that when it is shown that a blow was struck with a deadly weapon, and the proof of it does not, in itself, contain the exculpatory or mitigating circumstances, then the burden is on the defendant to repel the imputation of malice which the law presumes from the unexplained use of a deadly weapon. Miller v. State, 54 Ala. 155; Hadley v. State, 55 Ala. 31; Ex parte Brown, 65 Ala. 446. The charge given asserts a correct proposition of law as to the burden of proof when self-defense is relied on. If counsel apprehended that it did not go far enough, and cover the other phase of his defense, he should have requested a further instruction. It is neither practicable nor desirable that a single charge should cover a whole field of contention. It is enough if it assert a correct legal proposition, when applied to any distinct phase of the evidence. The charge in question asserted the proper rule as to the burden of proof, and it did not assume to go any further. Reversed and remanded. GOLDSMITH v. STATE. (Supreme Court of Alabama. February 21, 1889.) 1. TRESPASS-CRIMINAL PROSECUTION-WARNING. Code Ala. 1886, § 3874, declares that any person who, without legal cause, enters the premises of another, after warning, "within six months preceding, not to do so, must, on conviction, " etc. Held, under the statute, that there must be a warning first, and an entry afterwards. One already in possession, even though a trespasser, or there by implied permission, cannot, by a warning then given, be converted into a violator of the statute. 2. SAME-INSTRUCTIONS. Under such circumstances, a charge of the court "that defendant had a right to go on the premises, as any one has to go on the land of another, but these things are put at an end when the owner or possessor of lands warns him not to do so,' was calculated to mislead the jury. Appeal from circuit court, Crenshaw county; JOHN P. HUBBARD, Judge. John Gamble, for appellant. T. N. McClellan, Atty. Gen., for the State. STONE, C. J. The prosecution in this case was instituted under section 3874, Code 1886,-a purely statutory offense. It declares that "any person who, without legal cause or good excuse, enters * * * on the premises of another, after having been warned within six months preceding not to do so, must, on conviction," etc. In Watson v. State, 63 Ala. 19, this court said: "The statute is intended for the protection of the possession of real estate against the entry of intruders or trespassers; and it cannot be made to serve all the purposes of an action of trespass quare clausum fregit, nor converted into an action of ejectment, in which the title and right of possession may be determined. * * * But no mere claim of title, however sincerely made, can justify or excuse the trespass if it is committed after warning." In McLeod v. McLeod, 73 Ala. 42, it was said: "If the plaintiffs were in actual possession of any portion of the land, claiming title thereto, either adverse or permissive, as against the appellant, they could not be lawfully prosecuted for continuing their occupancy after a warning not to do so. The statute does not cover cases of this character. Bohannon v. State, Id. 47; Matthews v. State, 81 Ala. 66, 1 South. Rep. 43. “A single entry, and moving from place to place, on the lands of the prosecutor, on one and the same occasion, could not, it would seem, be divided into two acts of trespass." Owens v. State, 74 Ala. 401. It has been contended for defendant, and the testimony supported the contention, that Wilkinson held a mortgage on the lands on which the trespass is alleged to have been committed; that the debt secured by the mortgage was past due and unpaid; that the law-day of the mortgage was past; that Goldsmith was Wilkinson's agent in entering upon the land; that he entered peaceably, and without tumult or disturbance of the peace; and that, therefore, he did only what he was authorized by the mortgage to do, or, at least, what he in good faith believed he was authorized to do. We will not consider this aspect of the case. Street v. Sinclair, 71 Ala. 110. There is no controversy on the following propositions: The defendant was on the premises, the land, when he received the warning, and after he left the premises there is no proof that he ever returned. He did not enter the dwelling, nor the inclosure around it. The prosecutor testified that after he gave the warning defendant went into the field, and aided in gathering the corn. Defendant denied this, and testified that he did not go inside of any inclosure. This was the only conflict in the testimony. We think the testimony, under any interpretation, failed to make a case within the statute. There must be a warning first, and an entry afterwards. One already in possession, even though a trespasser, or there by that implied. permission which obtains in society, cannot, by a warning then given, be converted into a violator of the statute we are construing, although he may violate some other law, civil or criminal. Watson v. State, supra. And having violated no law in going on the premises, if the defendant moved from place to place afterwards, this would be but one continuous act, and could not amount to an indictable trespass after warning. Owens v. State, supra. What we have said must not be understood as applicable to an occupied dwelling-house. Both the common and statute law have erected special guards around it, and no one, even if on the outdoors premises, can enter the dwelling, after being warned not to do so. Such entry, after warning, would fall clearly within section 3874 of the Code. The court charged the jury "that defendant had a right to go on the premises, as any one has to go on the land of another. But these things are put at an end when the owner or possessor of lands warns him not to do so." This charge asserts a correct legal proposition, when applied to facts that are pertinent to it. But charges must be construed in reference to the testimony before the jury. Lehman v. Warren, 53 Ala. 535; Alexander v. Alexander, 71 Ala. 295. Interpreting this charge in the light of the testimony, we think the inference arises that it misled the jury, and the charge should not have been given. 3 Brick. Dig. p. 113, § 107; Beck v. State, 80 Ala. 1. Reversed and remanded. COLEMAN et al. v. PIKE COUNTY. (Supreme Court of Alabama. February 22, 1889.) 1. BONDS-LIABILITY OF SURETIES. In an action on the official bond of a county treasurer, now deceased, it appeared that a paper in the form of an "IO U" was given by the treasurer to the collector for county warrants which the collector had received in payment of taxes and turned over to the treasurer, to be accounted for on the next settlement. The treasurer received credit for all the warrants at the time of his death. Held, that the sureties could not assert that they were not chargeable with the warrants because they were taken by the collector in payment of taxes without authority of law, and because the treasurer was also without authority in taking them from the collector. 2. SAME EVIDENCE. Evidence that one H. acted as county treasurer after the treasurer's death, until his successor's appointment, and that on settlement with the county H. paid a certain sum received by him while so acting, is irrelevant, and does not tend to disprove the liability of the sureties. Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge. Action by Pike county against W. S. Coleman, J. S. Carrol, and Willis C. Wood, as sureties on the bond of J. F. Tyler, deceased, formerly treasurer of Pike county. The facts and points shown and raised on the appeal are the same as those on the former appeal, (3 South. Rep. 755,) with one exception, which exception is set forth in the opinion. Judgment for plaintiff. Defendants appeal. Gardner & Wiley and M. N. Carlisle, for appellants. Parks & Son, for appellee. CLOPTON, J. When this case was before us on a former appeal, the record stated that the paper for $419, which was introduced in evidence by plaintiff, was given by the county treasurer for county taxes collected by him as agent of the collector. The present record shows that it was given for warrants against the county, which the collector had received in payment of taxes. In making the settlement with the county treasurer for the month of November, 1885, he ascertained that he had taken warrants to such amount from the tax-payers that he did not have enough currency to pay the state its proportion of the v.5so.no.20-31 taxes. He took sufficient money out of the November collections to settle with the state for that month, and turned over to the treasurer the excess of warrants, for which he gave the paper referred to, to be accounted for on the next settlement. It is insisted that the sureties on the official bond of the treasurer are not chargeable with the amount of the warrants, on the ground that the collector had no authority to receive them from the tax-payers in payment of taxes, and that the treasurer was equally without authority to receive them from the collector. This may be conceded; still it does not follow that the treasurer should not be debited with the amount of the warrants, in ascertaining the sum of his defalcation. It appears that he received credit for all the warrants in his possession at the time of his death. Having these warrants in his possession, if not debited with them, having received credit for them, he would receive a credit without being charged with the amount of the county taxes in.payment of which he took them. The treasurer is the custodian of the county funds, empowered to disburse them in the manner prescribed by law, independent of the control of the county officials. It is his duty to pay the claims against the county in the order of presentment and registration. The presumption is that he discharged his duty, and that the warrants which he received from the collector were payable according to the order of registration, and that he took them for the taxes to prevent circuity of payment. Having received and retained them as a valid payment by the collector of so much of the county taxes, he will not be allowed to assert that he has not done his duty, and that he received them without authority of law. Robbins v. Godernor, 6 Ala. 839. We do not perceive the relevancy of the evidence offered by the defendants to show that Hilliard acted as county treasurer after the death of the treasurer, until the appointment of his successor, and that on a settlement with the county commissioners he paid $4,000 received by him during the time he was so acting. It does not tend to prove or disprove the liability of the sureties, or its amount, and has no connection whatever with the official transactions of the deceased treasurer. The other questions raised by the record were settled adversely to appellants on the former appeal. 83 Ala. 326, 3 South. Rep. 755. Affirmed. LONG et al. v. EFURD et al. (Supreme Court of Alabama. February 22, 1889.) HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE-LIABILITY FOR HUSBAND'S DEBTS. Under Code Ala. 1876, § 2706, by which the husband, as trustee of the statutory separate estate of the wife, had the right to control it without liability to account to the wife for the rents, etc., but by which such rents, etc., were not subject to his debts, land purchased in the name of the wife with such rents could not be subjected to the husband's debts. Appeal from chancery court, Barbour county; JOHN A. FOSTER, Judge. Bill by James H. Long and others against T. T. Efurd and others. plainants appeal. ComRoquemore, White & Long, for appellants. Jere N. Williams, for appel lees. STONE, C. J. Under our statute, (Code 1876, § 2706,) as it existed before February 28, 1887, the husband, as trustee of his wife's statutory separate estate, had the right to manage and control the same, and was not required to account with her, her heirs or legal representatives, for the rents, income, and profits thereof, but such rents, income, and profits were not subject to the payment of his debts. This constituted a very peculiar estate. It wanted one indispensable element of the ownership of the husband,-liability for his debts. With the exception of the exemptions the law can and does confer, the absolute ownership of property is incompatible with its exemption from execution. Jones v. Reese, 65 Ala. 134. It cannot be said, in any accurate employment of language, that under our former statutes the husband became the absolute owner of the rents, income, and profits of his wife's estate. He held them in trust, but the wife was without power to enforce that trust. Boaz v. Boaz, 36 Ala. 334; Patterson v. Flanagan, 37 Ala. 513. The object of the present bill is to subject a house and lot in Clayton to the payment of a judgment complainants recovered against Efurd & Son,-husband and son of Mrs. Efurd. The debt on which the judgment was recovered had been incurred before the lot referred to was purchased in the name of Mrs. Efurd, and the title taken in her name; T. R. Efurd, her son, negotiating the purchase, and superintending the improvements in her name. The question of contention is whether effects, the property of Efurd & Son, or either of them, or effects liable to the debts of either, entered into the purchase or improvement of the lot. It is uncontroverted that Efurd & Son failed in business in 1880 or in 1881, and that they have been insolvent ever since; and that Mrs. Efurd owned two plantations or places in the country, one called the "Home Place," on which she resided with her husband, and the other called the "Lower Place." These she held as her statutory separate estate. We also feel justified in holding that the lot and its improvements were paid for with the proceeds of crops that were grown on said places. True, T. R. Efurd, the son, sometimes employed some of his own means in payment or part payment for materials used in the improvements; but his testimony shows that he had previously received moneys of his mother with which to make these purchases, or that she subsequently repaid him. So, we repeat, the testimony proves that the lot and its improvements were paid for with the proceeds of crops grown on lands that were her statutory separate estate. Efurd, the husband, had the right to manage and control her separate estate, and to use and consume the rents, income, and profits, without liability to account for the same; and if he invested the same in property for himself, taking the title in his own name, that property would be subject to his debts, to the same extent as any other property held and acquired by him. But such use, consumption, or investment of the income and profits would neither create a debt against him, nor furnish a consideration to uphold a conveyance from him to her in payment of such supposed liability. Early v. Owens, 68 Ala. 171; Pickett v. Pipkin, 64 Ala. 520; Cahalan v. Monroe, 70 Ala. 271; Vincent v. State, 74 Ala. 274. The question, however, becomes a very different one when the husband, without consuming or investing the rents, income, and profits, permits the wife, or even any one else, to use or invest the same, not in his name, but in the name of another. In such case, the money or effects never having become subject to his debts, his creditors cannot complain of the disposition. A voluntary conveyance in such conditions is no fraud of which any one can complain. Vincent v. State, 74 Ala. 274; Fellows v. Lewis, 65 Ala. 343; 3 Brick. Dig. p. 491, § 20. It is contended, however, that the purchase money of the lot, or some part of it, was paid from the personal earnings of the wife and children, that these earnings were the property of the husband, and that complainants are entitled to relief to the extent such earnings entered into the purchase. Glaze v. Blake, 56 Ala. 379; Gordon v. Tweedy, 71 Ala. 202; 3 Brick. Dig. p. 552, § 129. We would find it exceedingly difficult and embarrassing, if this claim were made good, to carve partial relief out of the statutory separate estate of a married woman, under the law as it existed when this claim originated. Carter v. Worthington, 82 Ala. 334, 2 South. Rep. 516; Hoot v. Sorrell, 11 Ala. 386. We need not decide this question. We are not able to affirm, on the uncertain proof found in this record, that the $50, pur |