serve for cases of State against Adams and also State against McGuire, said 45 names together with the regular panel of jurors for this the second week of said court to constitute the venire for both cases of State against Adams and State against McGuire; and the court then set said two cases for same day, to wit, Monday, September 9th, 1901, and said 45 names so drawn, together with the regular panel of jurors for this week, does constitute the venire for both of said cases. (2) And this defendant further objects to being placed on trial, and to said venire, and says that twelve of those so constituting the venire in said two cases are now engaged in the trial of the case of State against McGuire, and cannot now be called to serve upon his case, and this defendant makes oath that the facts herein stated are true,-best of his knowledge and belief. Sworn to and subscribed before me." Each of these objections was overruled, and the defendant separately excepted. On the trial of the cause, the state introduced evidence tending to show that the defendant was guilty as charged in the indictment. There was evidence introduced in behalf of the defendant tending to show that the homicide was committed in self-defense. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant requested the court to give the following charges, and separately excepted to its refusal to do so (the charges are copied in the order in which they are copied in the bill of exceptions): "(14) If the jury have a reasonable doubt as to whether the killing was done deliberately, or as to whether it was done premeditatively, then they cannot find the defendant guilty of murder in the first degree; and if they have a reasonable doubt as to whether the killing was done in malice, then they cannot find the defendant guilty of murder in either degree, but only of manslaughter, at most; and if, after considering all the evidence, the jury have a reasonable doubt as to defendant's guilt of manslaughter, arising out of all the evidence, then they should find the defendant not guilty of any offense." "(9) In this cause the burden of proof is not shifted from the state to the defendant, and the presumption of innocence abides with the defendant until all the evidence in the cause convinces the jury to a moral certainty that the defendant cannot be guiltless." "(13) No greater burden rests upon the defendant when tried for a criminal offense than to create a reasonable doubt in the minds of the jury of his guilt, and he is entitled to it under the defense of selfdefense, or any other ground of defense." "(1) I charge you, gentlemen, that when no more appears from the evidence in a case than an unlawful and intentional killing of a human being, although without excuse or mitigation, the homicide is such a case to be no more than murder in the second degree." "(22) If the conduct of the defend ant in this case was consistent with his innocence, then he is not guilty of any offense." "(6) The court charges the jury that, though evidence tending to show flight is a matter to be considered by the jury, yet it is of weak and inconclusive character; it may not be evidence of guilt at all." "(S) If one assaulted suddenly and under the maddening influence of blows slays his assailant, and there is nothing else in the transaction, this is manslaughter and not murder." Worthy & Gardner, for appellant. Chas. G. Brown, Atty. Gen., for the State. DOWDELL, J. Section 5004 of the Criminal Code, under which the special venire in this case was drawn, provides as follows: "When any capital case or cases stand for trial, the court shall, at least one entire day before the same are set for trial, cause the box containing the names of jurors to be brought into the court-room, and after having the same well shaken, the presiding judge shall then and there publicly draw therefrom not less than twenty-five nor more than fifty of such names for each capital case [italics are ours, and for purposes that will appear hereafter], a list of which shall be immediately made out by the clerk of the court and an order issued to the sheriff to summon the persons so drawn to appear upon the day set for the trial, in like manner and under like penalties as he is required to summon grand and petit jurors. If the names in the jury-box should be exhausted before the completion of the drawing of such special jurors, the court shall direct the sheriff to summon from the qual ified citizens of the county, the specified number of persons necessary to complete the number of special jurors ordered by the court." At the time of setting a day for the trial of the defendant there were two capital cases pending in the circuit court,—that of the defendant and one of the State against McGuire. These defendants were separately indicted, and for separate and distinct felonies. Both cases were, by or der of the court, set for trial on the same day, and by order of the court only one drawing of special jurors was had, which, together with the regular jurors drawn and summoned for the week of the trial, constituted one and the same special venire for the trial of both cases. On the day of the trial a jury of 12 was first selected from the special venire for the trial of the defendant Dan McGuire, and thereupon and then the court proceeded to the selection of a jury of 12 for the trial of the appellant, al against this defendant's objection. Before a jury had been completed, the names of all of the persons who had been selected on the first jury were drawn, and, as each was drawn, the slip containing the name was directed by the court to be laid aside, and the defendant denied the right of passing on said jurors by challenging or accepting. From the foregoing statement it is apparent that the defendant did not have the number of jurors from which to select a jury for his trial which the former order of the court, made in setting a day for his trial, gave him, and this by the action of the court. It is wholly different from, and does not come within the principle and reason of those cases, where one or more of the regular jurors, who constitute in part the special venire, may happen at the time of the drawing and selecting of a jury in a capital case to be engaged in the trial of some other case, as in Kimbrough v. State, 62 Ala. 248, and similar cases. As was said in Evans v. State, 80 Ala. 6, in such cases "the ruling is founded on the presumption that, when the legislature provided that the regular jurors in attendance should constitute a part of the venire, it was contemplated that some of them might be engaged in the trial of another cause, and that the right of the defendant to have such regular jurors called is subject to the due administration of the law, and does not operate to delay or obstruct the business of the court." The necessities in such cases arise, not by any act of the court, but unavoidably, in the due administration of the law. But so much cannot be said in the present case. Nor can it be said that it was within the contemplation of the legislature, in the enactment of the statute under which the venire in this case was drawn, that any of the special jurors drawn on the venire might be engaged in the trial of another cause, at the time of the drawing and selecting the jury from the venire for the trial of the case. The statute provides that not less than 25 nor more than 50 special jurors may be drawn for the special venire, and if one venire may be ordered for the trial of two cases, why not for the trial of three cases, or, as for that matter, four cases, and if the number of special jurors ordered be 36 it would be possible, in making up the first three juries of 12 each from the special venire, to exhaust the 36 special jurors drawn, leaving to the fourth defendant not one of the special jurors drawn for his trial, and only the regular jurors, from which to select his jury, thereby utterly defeating the purposes of the statute. The question here presented -that is, of drawing one special venire for the trial of two separate capital cases-was considered by this court in the case of Evans v. State, supra, not under the present statute above set out, but under a local statute, entitled an act "to regulate the drawing and empaneling of grand or petit juries in Dallas county," approved Febru ary 14, 1885 (Sess. Acts 1884-85, p. 492). In construing the part of this act relating to the drawing and selecting of a jury for the trial of a capital felony, it was held to be error to order one venire for the trial of two defendants separately indicted for separate and distinct felonies. Without repeating all that was there said with regard to the manifest operation of the provisions of the statute to preserve unity, etc., in impaneling a jury, and contemplating that it shall be a proceeding in the particular case, individualzed and separate from all other criminal cases pending in the court, it may be here observed that what was said applies with equal force and reason to section 5004, now under consideration. This section formed a part of the act approved February 28, 1887, which, as originally passed, excepted from its provisions certain counties named therein. In express terms, as originally enacted, and as it now stands in the Code, it provides for a drawing of special jurors "for each capital case"; that is, when more than one capital case stands for trial. Section 5005, which follows section 5004, directs what shall constitute the venire for the trial of a capital case. This section provides, that the special jurors so drawn together with the regular jurors drawn and summoned for such subsequent week, when set for trial other than a day of the first week, shall constitute the venire. Section 5009 directs the manner of drawing the jury on the day set for the trial. This section provides that the names of the jurors summoned for the trial, as well as the names of the regular jurors in attendance, must be written on slips of paper, folded or rolled up, placed in a box, or some substitute therefor, and shaken up, to be drawn out, one by one, in the presence of the court by some officer designated by the court, until a jury is completed. It is manifest from these provisions that it was intended to se cure to the defendant the right to select his jury from the special jurors drawn and summoned for his trial, not from a part of them, but from all, and likewise from the regular jurors constituting in part the special venire; but, in case of the regular jurors, subject, of course, to the contingency of one or more of them being at the time engaged in the trial of some other cause. The case of Chamblee v. State, reported in 78 Ala. 466, was decided at the same term as Evans v. State, supra, and cites the latter case, differentiating the two cases. The statute under consideration in Chamblee's Case was the act approved February 17, 1885 (Sess. Acts 1884-85, p. 181). The provisions of this act relative to the drawing of jurors for capital felonies are materially different from the provisions of section 5004 of the Code. Section 10 of this act provided for the drawing of one special venire from which to select juries for capital cases standing for trial. The statute under consideration in the case of Thomas v. State, 124 Ala. 48, 27 South. 315, was a local statute, applying to Montgomery county. This act in express terms authorized the drawing of one venire for the trial of two or more capital cases. Our conclusion is that the circuit court committed error in ordering one special ve nire for the trial of two separate and distinct cases. The defendant requested in writing many charges, quite a number of which were refused by the court. Some of the refused charges contained correct expositions of the law, and others did not. According to the order in which they appear in the record, the first refused charge which should have been given is numbered 14. This charge was held good in Compton v. State, 110 Ala. 34, 20 South. 119, and in Stoneking v. State, 118 Ala. 70, 24 South. 47; the only difference between the charge here and the charge in those cases being that in the latter the language used is, "if the jury has a reasonable doubt of defendant's guilt of manslaughter, arising out of any part of the evidence," while the language used in the present charge is, "arising out of all of the evidence." The change, instead of detracting from the charge, tended to make it a more perfect one, and the court erred in its refusal. Charge No. 9, refused to the defendant, is an exact copy of a charge which was held to correctly state the law in Smith v. State, 68 Ala. 430. I think the charge is a correct statement of the law, and I approve the former ruling in Smith's Case, supra. The majority of the court at present, however, are of a contrary view, and hold that the charge is faulty, in that it is misleading in its tendency, and for that reason was properly refused. If charge No. 13, as copied in the record, is a correct copy of the charge as asked,— and we cannot say that it is not,-then it can hardly be said to be intelligible. Charge No. 1 is subject to like infirmity. Charge No. 22 is indefinite and uncertain, with tendency to mislead. The evidence, without conflict, showed that the defendant, after the killing, fled the state, and was apprehended in Arkansas and brought back from that state. This was all of the evidence as to flight. No explanation was offered. Under this state of the evidence, charge 6, whether abstractly good or not, was properly refused. There was evidence tending to show that the defendant brought on the difficulty, and under this phase of the evidence charge 8, if bad for no other reason, was properly refused. Charges hypothesizing self-defense in general terms, which omit to set out the constituent elements of self-defense, have been condemned by this court in Miller v. State, 107 Ala. 40, 19 South. 37, and in Gilmore v. State, 126 Ala. 20, 28 South. 595. So, also, charges hypothesizing one or more elements of self-defense, without setting out all of the constituent elements, and asking an acquittal on those hypothesized if believed, should be refused. The refused charges not herein above specially mentioned are either subject to the infirmities just stated or are argumentative, or are faulty in misplacing the burden of proof. 1. An adjournment from August 19th to September 2d of the county court of Elmore county, the regular term of which convened on the former date, does not render the court held on the later date a special session, at which jury trials are unwarranted, but is a mere adjournment from one day of the term to another, the court being authorized by Local Acts 1898-99, p. 257, to continue till the business is disposed of. 2. When the defendant, in a prosecution for assault and battery, pleads that he was formerly convicted of disturbing an assembly, which was the same unlawful act of which he is now charged, the refusal to sustain a demurrer to a replication, which merely alleges that the offense of which defendant is charged is not the same offeuse for which he was convicted, is error, as the replication is merely an allegation that the two offenses, created by the same act, are different as a matter of law, which cannot be set up in a replication. 3. A requested instruction, in a prosecution for assault and battery on a school-teacher for punishing defendant's child, that the jury may look to the relation between the defendant and his child in mitigation or justification, if they find that defendant believed that the child had been cruelly or immoderately punished, is properly refused, as being argumentative. 4. The fact that a pupil in a school is se verely punished is not a provocation sufficient to justify an assault on the teacher by the father of the child on the succeeding day. 5. It is not error, in a prosecution for assault and battery, to refuse to allow defendant's counsel to read law to the jury. Appeal from Elmore county court; H. J. Lancaster, Judge. D. W. Walkley was convicted of assault and battery, and he appeals. Reversed. On December 31, 1900, an affidavit was made before the judge of the county court charging appellant with an assault on L. N. Duncan, and a warrant was issued thereon charging him with assault and battery. The regular term of the court convened on the third Monday, which was the 19th day, of August. Local Acts 1898-99, p. 257. The jury was summoned to appear on that day. but the venire was not returned into court by the sheriff until September 2d. The ree ord shows that on August 19th the judge ordered the court adjourned until September 2d, which order was entered by the clerk on the latter date, but no order was made in reference to the jury. Defendant objected by plea that he could not be put to trial, as the term being held was not a regular term; that no jury trial could be had except at a regular term; and he was entitled to a jury trial. The court overruled this plea, and held it for naught, and forced defendant to go to trial. Defendant raised the same objection, by offering evidence in support of his plea, but the court overruled it, and he duly excepted. Defendant filed a plea of former jeopardy, in that he had been, on February 21, 1901, in the same court, tried and convicted, on a warrant sworn out on December 20, 1900, charging him with disturbing an assemblage met for school purposes or holiday, which the plea avers was created at the Fifth District Agricultural School, at Wetumpka, on December 20, 1900, by defendant assaulting and beating one L. N. Duncan, and from no other cause or act of defendant; that defendant struck Duncan only once, and for this, his only act, he was convicted on the charge of disturbance, etc., as aforesaid, in February, 1901; that the assault and battery here charged is the same identical act, and not otherwise, for which he has already been prosecuted and convicted on the charge of disturbance, etc. There was no demurrer to this plea. The state replied, admitting the prosecution and conviction of disturbance, etc., and that such disturbance consisted of the assault and battery at the school on December 20, 1900, but denying that defendant had been tried for an assault and battery on Duncan on December 20th, at the school, and denied that defendant had ever been tried for the offense of assault and battery on Duncan on that date, or that the offense for which the defendant was tried in February was the same offense as that for which he is now on trial. To this replication defendant demurred, on the following grounds, in substance: (1) That the replication fails to set up facts independent of or dehors the plea that justified the further prosecution of defendant; (2) that the replication neither confesses nor denies material averments of the plea, nor sets out new or independent facts justifying the further prosecution of this suit. The court overruled the demurrer to the replication, and defendant excepted. The evidence showed that Duncan was a teacher in the Agricultural School on December 20, 1900, and during the day before had chastised his pupil Earle Walkley, the son of defendant; that there was an entertainment in the auditorium of the school in the night of that day, and defendant there assaulted and beat Duncan by striking him one blow. There was evidence for defendant tending to show that Duncan's chastisement of defendant's son was immoderate, and did him very considerable bodily harm; while there was evidence for the state tending to show that said punishment was not severe or immoderate. Defendant's counsel in the course of the argument to the jury, after reading parts of 1 Bl. Comm. p. 449, proposed and offered to read therefrom the following: "Nay, when a man's son was beaten by another boy, and the father went near a mile to find him, and there revenge his son's quarrel by beating the other boy, of which he afterwards unfortunately died, it was held not to be murder, but manslaughter merely; such indulgence does the law show to the frailty of human nature and the workings of parental affection." This had been previously read to the court in arguing the competency of testimony, and when counsel proposed and was proceeding to read it to the jury the court, ex mero motu, directed and ordered counsel not to read it to the jury, and defendant excepted. Defendant asked the following written charge, which was refused: "The jury may look to the relation between defendant, Duncan, and defendant's son (Earle), the pupil who was chastised, in mitigation or justification, if they find from all the evidence that defendant honestly and candidly believed that his child had been eruelly or immoderately punished by said Duncan." To the refusal to give this charge, defendant excepted. The defendant was convicted of an assault and battery, and fined $150, and from this judgment of conviction he prosecutes the present appeal. Watts, Troy & Caffey, for appellant. Chas. G. Brown, Atty. Gen., for the State. SHARPE, J. A court has inherent power to adjourn its sittings from time to time within the time allowed by law for holding the term. In general, such power is essential to the convenient and proper disposition of business, and its exercise works merely a postponement of business, and not in any sense an ending of the term. Under the act regulating terms of and procedure in the county court of Elmore county (Local Acts 1898-99, p. 257) regular terms "may continue till the business is disposed of," and jury trials, though unauthorized except at regular terms, may be held at any time during such terms. When the defendant was tried there had been no adjournment of the term sine die, but the court was being held pursuant to a temporary adjournment from one day to another day of the regular term; and hence the contention that the court was sitting in special session without power to try with juries is unwarranted. The replication, by not denying, impliedly admitted the matters averred as facts in the plea of former conviction, and, construed as the rules of pleading require, most strongly against the pleader, its averment that the offense for which the defendant had been previously convicted was not the same for which he was presently prosecuted must be taken as an averment merely that the two offenses, though created by the same act, were different in law. Such difference as the law attaches by name and punishment to several consequences of a single criminal act results, of course, from the law itself, and, if proper to be asserted in opposition to the plea, was matter for demurrer, and not for a replication, the office of which, if not traversing the plea, is confined to setting up issuable facts in avoidance or estoppel. The effect of this replication was to thwart the plea and place the defendant at disadvantage, by turning the issue upon the averment of a legal conclusion. In overruling the demurrer to the replication there was error, for which the judgment must be reversed. The record raises no question as to the merits of the plea. As bearing on that subject, reference may be made to the following, among other, authorities: State v. Johnson, 12 Ala. 840, 46 Am. Dec. 283; O'Brien v. State, 91 Ala. 25, 8 South. 560; Hurst v. State, 86 Ala. 604, 6 South. 120, 11 Am. St. Rep. 79; Moore v. State, 71 Ala. 307. The charge requested was argumentative, and bad also in assuming that defendant might be legally justified in committing the assault and battery on no other provocation than the punishment received by his son on the day previous. The court did not err in refusing to allow defendant's counsel to read law to the jury. Reversed and remanded. NOBLE et al. v. GADSDEN LAND & IM- 1. A corporation was organized in boom times with the purpose of building a town on a tract of land owned by it; the land to be divided into lots and sold, and industrial enterprises to be located thereon, etc. Conservatism in financial matters having returned, it was left with the land, worth $15,000 or $20,000, and without other assets. It had no creditors, and its stockholders abandoned it. Many of the latter were nonresidents, and the resident ones declined or failed to attend the meetings. Its expenses for taxes, licenses, etc., amounted to $600 or $700 annually, and its annual income was only $50, so that each year a portion of the land was sold by public authorities to meet the charges. Held, that minority stockholders had a right to have the assets distributed, which could be done under the direction of the court by the corporation's agents.1 2. A bill was brought to have the assets of a corporation, which had been abandoned by the stockholders, distributed. The stockholders bringing the bill held 2,800 shares of stock, and those made parties defendant held 7,099 shares. The entire stock numbered 25.000 shares, but about one-third was held by persons whose residences could not be ascertained, and who lived in all parts of the country. The bill averred that defendants were the principal and largest stockholders, and fully and fairly represented the adverse interests of all, and that all the stockholders belonged to the same class; that it would be impossible to bring the cause to final hearing if all had to be made parties, etc. Held to bring the case within rule 19 of chancery practice (Code, p. 1205), authorizing the court, in its discre 1 See Corporations, vol. 12, Cent. Dig. § 2435; 1898 Dig. § 285 [d]. tion, to dispense with the bringing in of all the interested parties where the parties are numerous, and a sufficient number are before the court to represent all adverse interests. Appeal from chancery court, Etowah county; R. B. Kelly, Chancellor. Bill by John H. Noble and others against the Gadsden Land & Improvement Company and several of its stockholders. Decree denying the relief prayed for, and ordering the bill dismissed for want of equity, and complainants appeal. Reversed. J. J. Willett, for appellants. Wm. H. Denson, for appellees. TYSON, J. The bill in this cause, after amendment, is the complaint of three stockholders owning in the aggregate 2,800 shares of the capital stock of the respondent corporation, and prays to have the corporation dissolved, and its assets, which consist of 600 acres of land, sold, and its proceeds distributed among the stockholders, and for general relief, etc. The corporation is a private trading one, and has a capital of $2,500,000, divided into 25,000 shares, of the par value of $100 each. The purpose of its organization was the building of a town upon the tract of land owned by it. To this end, this land was to be divided into lots, to be sold to those who could be induced to purchase them; and the company was to procure, if possible, the location of industrial enterprises on its land, and thus enhance its value, and make salable its lots. In short, it is what is known as a "boom concern." It was organized when the country was rife with speculation' and now that conservatism in financial matters has returned, after a severe experience during the years of financial depression, the company is left with this tract of land, and nothing more, worth probably fifteen or twenty thousand dollars. Fortunately, it has no creditors, and therefore no one interested in its affairs, except its stockholders, who are shown to have abandoned the enterprise, leaving it to be managed by its board of directors as best they can. For five years its president and secretary have made diligent efforts to have the stockholders meet. Many of them are nonresidents of this state, and those who are residents decline to attend the meetings when called, after being notified and urged to do so. There are 345 of them, and the whereabouts of one-third of the number is unknown and unascertainable, and the remaining two-thirds have lost all concern or interest in the affairs of the company. The fixed charges which the corporation is bound to meet annually, in the way of taxes, licenses. etc., is between six and seven hundred dollars. Its income annually is only about fifty dollars. So that each year a portion of its tract of land is sold by the state, county, and city of Gadsden to pay these charges. It is wholly without credit, and its assets are being sacri |