In

now been decided. We refer only, to such principles as are applicable to this case. cases of alleged confession under threat, the controlling inquiry is, whether there had been any threat of such a nature as that from fear of it the prisoner was likely to have told an untruth. If so, the confession should not be admitted. Its exclusion rests on its connection with the inducement; they stand to each other in the relation of cause and effect. If it is apparent that no such connection exists, there is no reason for the exclusion of the evidence. Whart. Cr. Ev. § 672; 1 Greenl. Ev. § 219; 3 Am. & Eng. Enc. Law, 472; Brister v. State, 26 Ala. 128; King v. State, 40 Ala. 318; Sampson v. State, 54 Ala. 241. Whether a confession was made voluntarily or not, is for the court to determine upon consideration of the condition, situation and character of the prisoner, and the circumstances under which it was made. 1 Brick. Dig. p. 509, 859; Porter v. State, 55 Ala. 95; Young v. State, 68 Ala. 575. The defendant in this case is shown to have made the confession attributed to him, in the face of a charge of his guilt, by the party claiming to own the hog, accompanied by a threat, that he intended to have it, and also, that he "intended to put the defendant where the dogs would not bother him." It may be fairly inferred, that the defendant was a person inferior in force and station to the claimant of the hog and his friend, Cobb. He offered no resistance by word or deed to the charge that had been made against him. They took him into custody on the heels of the accusation and marched him off, without any resistance or remonstrance from him, to his own house, in search of the hog. He had admitted to them, before charged with the crime, that he had an unmarked shoat at his house which he claimed. These two men evidently dominated defendant to the extent of awing him into unresisting submission as a prisoner, without legal warrant. Exactly what Molton meant by putting the defendant where the dogs would not bother him, we are not given to understand, nor is our understanding of what he meant very material. The question is, what did the defendant understand or fear the threat to mean? The contention of the state is, that he must have understod it to mean no more, than that Molton intended to prosecute him for the alleged theft. But we are not sure that a prisoner like this one, charged with larceny, placed under such a threat, captured without warrant and taken off by two men as he was, would come to the conclusion that he was to be let off lightly as with a prosecution. Might not such a party have feared punishment of a graver character, and have been persuaded in his mind, that it was better to compromise out of his difficulty, by acknowledging that the hog belonged to Molton, and by offering to pay him for it? We think it not unlikely that, situated as he was, he came to some such conclusion, and made the admissions he

did, with the hope thereby to escape the wrath of his captor, and the execution of the threat he had made against him, so capable of a construction of violence, by a timid and non-resistant person. All confessions are prima facie involuntary, and they can be rendered admissible only by showing that they are voluntary and not constrained, and this should be made satisfactorily to appear. Redd v. State, 69 Ala. 259; Young v. State, 68 Ala. 577. We are of the apprehension the confession in the case was improperly admitted. Reversed and remanded.

FOWLER v. STATE.

(Supreme Court of Alabama. Feb. 7, 1894.) LARCENY-EVIDENCE-INSTRUCTIONS-GRAND JU RY-INDICTMENT-VALIDITY.

1. On trial for the larceny of an ox, the property of P., the latter was properly permitted to testify that, after the ox was missed, he was shown some horns; that they were the horns of the ox that he lost; and to state how he identified them.

2. The ownership of stolen property is properly laid in the person in possession at the time of the larceny, either as a conditional purchaser or bailee.

3. There was evidence that the horns of P.'s ox, which had been butchered near S.'s house, were seen in possession of a person who had gotten them of one M., but there was no proof of when, where, or how M. got them. Held, that a charge that, if P.'s ox was butchered near S.'s house, that fact tends to show where the horns were found by a person afterwards in possession of them, was erroneous, since it assumes that M. found them.

4. Instructions that are partly or wholly argumentative are properly refused.

5. It is not error to refuse to charge that if, according to the theory of defendant, from the evidence, he could not be guilty, and according to the theory of the state, from the evidence, he would be guilty, and the jury are unable to say which theory is true, they should acquit; since defendant's guilt must be determined by the evidence, and not by the theories of the parties.

6. Code, § 4299, requires grand jurors to be householders "or" freeholders. Section 4338 provides that, if 15 grand jurors are not present and accepted, the court must order the sheriff to summon twice the number necessary to make the panel 15, and from the persons so summoned must be drawn the necessary number. Held, that where there was a deficiency of two in the panel, and the court ordered only two persons summoned, and required them to be householders "and" freeholders, such grand jury was illegal.

Appeal from circuit court, Geneva county; J. M. Carmichael, Judge.

Thomas J. Fowler was convicted of larceny, and appeals. Reversed and remanded.

Upon the examination of Charles L. Phillips, it was shown by the state that the said Phillips owned an ox, and that it had not been seen since about the 6th of September, 1892. This witness further testified "that some two or three weeks after that time he was shown some horns; that one Murdock had the horns, and had gotten them from one Martin; that they were the horns of the

ox which he lost; that his attention was called to an indenture in one of the horns;" and by other ways the said witness identified the horns as being the horns of the ox which he had lost. After having stated that the witness purchased the ox in question, and another one, from Malone & Collins, the defendant's counsel, on cross-examination, asked said Phillips "if it was not the understanding at the time he got the ox from Malone & Collins that he should keep the oxen until fall, and that, if he was able to pay for them, he was to take them; otherwise, he was to pay rent on them to Malone & Collins." To this question the witness answered in the affirmative. He was then asked "if he had ever paid Malone & Collins for the oxen, or offered to pay them for the same." The state objected to this question, the court sustained the objection, and the defendant duly excepted. It was further shown that an ox answering, to some extent, the description of the one lost by Phillips, was killed and butchered near the house of one Jesse Spigner. There was also testimony tending to connect the defendant with the crime with which he was charged. At the request of the state, the court gave the following written charges to the jury: (1) "The doubt to acquit the defendant must be actual and substantial, not mere possibility or speculation. It is not a mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt.". (2) "While the law requires the guilt of the accused to be proved beyond a reasonable doubt, it does not require that each fact which may aid the jury in reaching the conclusion of guilt shall be clearly proved; but that, on the whole evidence, the jury must be able to pronounce that guilt is proved to a moral certainty." The defendant separately excepted to the giving of each of these charges. At the instance of the defendant, the court instructed the jury that there was no evidence in the case to show where the horns testified about were found, and the solicitor asked the following charge in rebuttal, and it was given by the court: (3) "If the jury believe from the evidence that a brindle ox was butchered near the house of Jesse Spigner, and that the ox so butchered was the property of Charles L. Phillips, then the jury may consider this fact, if it be a fact, in connection with the whole evidence in determining where the horns testified about were found, if they further believe from the whole evidence that the horns said to have been found were the 'horns from Phillips' ox." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges, requested by him: (1) "Larceny is the wrong. ful taking and carrying away by any person of the mere personal goods of another from any place, with a felonious intent to convert them to his own use and make them his

own property, without the consent of the owner. Suspicious circumstances that all the above may be true will not do, but, in order to convict, the state must prove all the above to the entire satisfaction of the jury. Character is not what the defendant is tried for, neither can the jury consider the same except for the purpose of determining the truth of the particular facts testified to by the witness whose character was the subject of the particular proof." (2) "Before the jury can commence to investigate the facts as to who the guilty party is, if one is guilty, the state must first show that the ox in question was killed. It must be without a reasonable doubt the ox of Charles Phillips, and the killing must have been with a guilty knowledge that the same was stolen from the owner with the purpose to fraudulently convert it to the use of the party taking it. Unless this is first fully and certainly established, the jury go no further, and acquit." (3) "On a trial for the stealing and carrying away an animal of the cow kind, there being no direct proof of the killing or circumstances attending the killing, which was committed on the 6th day of September, 1892, by either of four defendants, or all them, it should require stronger testimony, especially if circumstantial evidence is relied on, and a conviction should not be had on it if positive evidence is obtainable showing that another did the act." (4) "If, according to the theory of the defendant, from the evidence, the defendant could not be guilty, and according to the theory of the state, from the evidence, the defendant would be guilty, and the jury are unable to say which theory is true, the jury should acquit the defendant." (5) "The pres ence or absence of a motive in the commission of an offense is always a legitimate subject of inquiry. It is of more importance and deserving more of consideration when a grave charge is made against a neighbor, and when the identification of the accused as the criminal agent depends upon circumstantial evidence." (6) "The fact, if it be a fact, that C. L. Phillips lost an ox, and that the defendant about that time borrowed a wagon from John Kyle, that it was in the morning, before day, and that a witness swears that the defendant passed his house with beef in it, and that the wagon was returned with spots of blood, without more proof, is insufficient to base a conviction." (7) "The court charges the jury that they must believe to a moral certainty, and beyond all reasonable doubt-First, that the ox in question was stolen and carried away; second, that the defendant did the stealing, or aided therein; third, that the property was the property of C. L. Phillips at the time he was stolen; fourth, that he was stolen after the 6th day of September, 1892. If the jury have any reasonable doubt of any of the above facts, they must acquit the defendant." To the refusal to give each of said charges the defendant severally excepted.

R. H. Walker, for appellant. Wm. L. Martin, Atty. Gen., for the State.

HEAD, J. The testimony of Charles L. Phillips in reference to the ox horns said to have been found, in connection with other evidence, tended to prove the corpus delicti, and was admissible. It was immaterial whether Phillips had paid or offered to pay Malone & Collins for the oxen, or not. If he was in possession of them, at the time of the alleged larceny, either as a conditional purchaser or a bailee, the ownership was properly laid in him. It is not disputed that he was in possession in the one or the other capacity. The ruling of the court on this point was free from error.

The first and second charges given at the instance of the state are legal truisms, which need no discussion. They were properly given. The analysis of charge 3, requested by the state, is that, if the ox of Phillips was butchered near the house of Jesse Spigner, that fact tends to show where the horns which came from that ox were found by a person who was afterwards discovered in possession of them. There was evidence tending to show that the horns from Phillips' ox, which had been butchered near Spigner's house, were seen in the possession of a person who had gotten them from one Martin; but there was no proof tending to show when, where, or how Martin got them. That he found them at all is a pure assumption. It would have been competent to prove that the horns of Phillips' ox were found at the place where the slaughter of an ox had occurred, near Spigner's house, to aid the other testimony, going to show that the slaughtered ox was that of Phillips; and e converso, if the place where the horns were found had been the subject-matter of investigation by the court, it would have been competent to prove the place where Phillips' ox was slaughtered, in aid of other evidence tending to show where the horns were found. But such was not the matter of investigation. The defendant was not indicted for putting the horns at a particular place. He was on trial for larceny of the ox. The charge was inapt, and unnecessary as well, as it assumed that the horns had been found, and ought to have been refused. Whatever there is good in the first charge requested by defendant is rendered improper, as an instruction, by its association with the matters of argument contained in the charge. The defendant's second charge is bad for several reasons. It was not essential to the completion of the larceny that the ox was killed. The charge was misleading in other respects. The third, fifth, and sixth charges of defendant's series are nothing but arguments. The jury have nothing to do with the theories the parties may derive from the evidence, unless they find support in the evidence. It is improper to submit such to the jury in any form. That body must themselves examine the evidence,

and determine what theories are deducible from it. They are not compelled to consider the theories of the parties, as charge 4 requested by defendant would require. The seventh charge was rendered bad by the requirement that the ox must have been stolen after the 6th of September, 1892, in order to a conviction.

We have examined the record of the organization of the grand jury which found this indictment, and find it fatally defective. Under the law obtaining in Geneva county, grand jurors may be householders or freeholders. They are not required to be both. Code, § 4299. Again, the law provides, in substance, that, if 15 grand jurors are not present and accepted, the court must order the sheriff to summon twice the number necessary to complete the panel to 15, and from the persons so summoned must be drawn the necessary number. Id. § 4338. In the present instance there was a deficiency of two persons, and the court committed the error of ordering only two summoned, and the further error of re quiring that they should be both householders and freeholders. An indictment found by a body so organized is invalid. For the errors pointed out, the judgment of the circuit court is reversed, and the cause remanded. Let the defendant remain in custody until legally discharged. Reversed and remanded.

MCVAY v. STATE.

(Supreme Court of Alabama. Feb. 8, 1894.) CRIMINAL LAW INDICTMENT AND PROOF VARIANCE ABUSIVE LANGUAGE IN HEARING OF FEMALES-EVIDENCE-INSTRUCTION.

1. Cr. Code, § 4031, provides for the punishment of "any person who enters into or goes sufficiently near to the dwelling of another and in the presence or hearing of the family of the occupant thereof or any member of his family," or "who, in the presence or hearing of any female, uses abusive, insulting, or obscene language. Held, that a person indicted under the last clause of the section may be convicted by proof which shows a violation of both clauses.

2. On trial of a person for cursing in the hearing of females, a witness may state whether, in his opinion, the females were near enough to have heard it.

3. Where, on the trial of a person for cursing in the presence or hearing of females, the uncontradicted evidence shows that no females were present, it is error to charge that, if a certain woman was near enough to hear the abusive language used, it is not necessary to show that she did actually hear it.

Appeal from Lawrence county court; J. C. Kumpe, Judge.

Sterling McVay was convicted of using abusive, insulting, or obscene language in the presence or hearing of females, and he appeals. Reversed and remanded.

The indictment charged "that, before the finding of this indictment, Sterling McVay did, in the presence or hearing of a woman, make use of abusive, insulting, or obscene language, against the peace," etc. The testimony showed that the defendant, within

the period covered by the indictment, and in Lawrence county, in the presence of one Whitman and others, used abusive language near the dwelling of said Whitman, where the latter's wife and daughter were at the time; that this was about 8 o'clock p. m., and the defendant spoke in a "moderate or audible voice." None of said females were present when the words were spoken, but were in the house, about 25 or 30 yards from the defendant. While the said Whitman was being examined for the prosecution, the solicitor asked him "if, from the distance his females were from the defendant at the time of the cursing, could they have heard the language used?" The defendant objected. to the question, and, his objection being overruled, he duly excepted. The witness then answered, "It was a still night, and, in my opinion, they could have heard it." The defendant objected to the answer of the witness on the ground that it was the statement of an opinion, and not of a fact. The court overruled the objection, and the defendant duly excepted. The rulings of the court upon the charge given and the charge refused are sufficiently stated in the opinion.

Wm. L. Martin, Atty. Gen., for the State.

COLEMAN, J. The defendant was indicted and convicted under section 4031 of the Criminal Code, which reads as follows: "Any person, who enters into or goes sufficiently near to the dwelling house of another, and in the presence or hearing of the family of the occupant thereof, or any member of his family, or any person, who in the presence or hearing of any female, uses abusive, insulting, or obscene language, must on conviction," etc. The first clause of the statnte was intended to protect the home, and the user of the language prohibited by the statute, in the presence or hearing of the family, or the occupant thereof, or any member of the family, without reference to the sex of such member, would be guilty of a violation of the statute. The statute then makes the use of such language in the presence of "any female," without reference to the place in which it is used, a violation of law. The indictment simply charges that the defendant made use of the language in the presence of a female. The witness Whitman testified to the use of the language by the defendant. He says: "None of the female members of my family were present. They were in my house, twenty-five or thirty yards from where the cursing was going on. My wife and one daughter was in the house." There was no evidence tending to show that the language used was in the presence or hearing of any other females or female. The defendant asked for the general affirmative charge, which was refused. It is very clear that if the defendant had been indicted under the first provision of the statute, for going sufficiently near the dwelling

house of the witness, and making use of such language in the presence or hearing of the family, or any member of his family, the charge should have been refused. The question presented by the charge is whether a party indicted under one provision of the statute can be convicted by proof which shows that the offense was covered also by a different provision. The case is not different from those which arise where the same act constitutes a violation of two or more statutes. A party may play at cards on Sunday, in a public place, and hazard money or a thing of value on the game. Such an act would violate three distinct statutes of this state, that which prohibits playing cards on Sunday, and the statute which prohibits the playing of cards at a public place, and also the statute which makes it an offense to bet or hazard money at a public place, etc. Cr. Code, §§ 4045, 4052, 4057. The same principle is illustrated in the law against retailing, and violating the revenue law, and selling whisky to a minor. A conviction for the act charged under either statute is a bar to a prosecution for the same act under a different statute. It was so held in the case of O'Brien v. State, 91 Ala. 25, 8 South. 560. There was no error in refusing the general charge for the defendant.

Against the objection of the defendant, the solicitor was permitted to ask the witness "if, from the distance his females were from the defendant at the time of the cursing, could they have heard the language used?" To this question the witness answered, “It was a still night, and, in my opinion, they could have heard it." In the case of Cox v. State, 76 Ala. 66, under a similar indictment, the witness was asked, "Were you present, and near enough to see and hear what transpired between the parties?" This court held that was a proper question, and should have been answered. If a party can answer that he was near enough to hear a declaration, we cannot see why he may not answer whether or not a third person was near enough to hear. Adding the words "in my opinion" does not vary the principle. He knew the circumstances, the distance the parties were apart, heard the tone of voice, observed the stillness of the night, and could answer as a fact that, in his judgment, the females could have heard it. The words "in my opinion" were evidently used in this

sense.

The court charged the jury "that if Mrs. Whitman was near enough to hear the abusive and insulting or obscene language used it is not necessary to show that she did actually hear it." We think this charge should not have been given. To authorize a conviction, the language must be used, "in the presence or hearing of a female." The uncontradicted evidence is that no females were present. It was therefore necessary to satisfy the jury that the words were heard. This is the distinction between this case and

the Case of Yancey, 63 Ala. 141. In the latter case the evidence showed the presence of the female. It was therefore unnecessary to introduce proof that she heard it. The case must be reversed for the error in giving the charge excepted to. Reversed and remanded.

HOLMES v. STATE.

(Supreme Court of Alabama. Feb. 8, 1894.) HOMICIDE-EVIDENCE-SELF-DEFENSE.

1. On trial for murder, evidence of bad feeling between defendant and deceased is competent to show malice.

2. It was not error to exclude the question, "State whether or not the hoe that M. had was of such weight and strength that he could have killed a man within striking distance," as the witness was not an expert, and the fact being as much within the knowledge of the jury as of the witness.

3. If there is a safe way of retreat open to the slayer, available by the exercise of reasonable prudence, there can be no necessity to kill.

4. Where the defendant has made out a case of self-defense, the burden of proving that he was at fault in bringing about the difficulty is upon the state.

5. If defendant was at fault in bringing on the difficulty, it is no defense that he did the killing to save his own life.

ing, and struck the said Henry Mann with

an axe.

During the examination of one of the witnesses for the state the solicitor asked him the following question: "Do you know of any bad feeling between defendant and deceased prior to the difficulty?" The defendant objected to this question, and duly excepted to the court's overruling his objec tion. Upon the witness answering, "I know there was bad feeling between the defendant and deceased prior to the difficulty," the defendant moved to exclude this answer, and, his motion being overruled by the court, duly excepted. During the examination of another witness, and after he had described the hoe which the deceased had as "an ordinary weeding hoe, with a pine handle, five or six feet long, fastened in the eye of the hoe," the defendant's counsel asked the witness to state "whether or not said hoe that Henry Mann had was of such weight and strength as that he could have killed a man within striking distance." The state object. ed to this question, and, the objection being sustained by the court, the defendant duly excepted.

Upon the introduction of all the evidence the defendant requested the court to give the following written charges, and separate

Archie Holmes was indicted and tried for the murder of one Henry Mann, and was convicted of murder in the second degree, and sentenced to the penitentiary for 10 years. Affirmed.

The evidence as to the particulars of the difficulty in which the deceased was killed, and how it arose, was in conflict. The evidence for the state tended to show that the defendant and his brother, Thomas Holmes, and the deceased and his three sons, were coming from their work on the road; that Jim Mann, a son of the deceased, and Thomas Holmes, a brother of the defendant, got into a quarrel; that Thomas Holmes was charged with bringing on this difficulty, and that, after the passage of several quarrelsome words, the said Thomas Holmes struck at Jim Mann with his hoe; that Henry Mann (the deceased) ran up, and threw his hoe under the hoe of Thomas Holmes, catching the blow as it came down; and that, while standing there, with their hoes locked, the defendant ran back about 10 or 15 feet, and struck Henry Mann with the blade of an axe, from which blow he died. The testimony for the defendant tended to show that Jim Mann was at fault in bringing on the difficulty, and that, while said Thomas Holmes and Jim Mann were standing with their hoes locked, the deceased ran up, and struck the said Thomas Holmes in the head with his weeding hoe, knocking said Thomas Holmes to his knees; and that, as he raised the hoe, about to strike him again, the defendant ran back to where they were fight

each of them as asked: (a) "If the jury be lieve from the evidence that defendant struck the fatal blow when there was a present, pressing necessity to strike in order to save the life of his brother, or to save his brother from great bodily harm, then the law casts upon the state the burden of showing beyond reasonable doubt that defendant's brother was at fault in bringing on the difficulty." (b) "If the defendant struck the fatal blow when there was a present, pressing necessity to strike in order to save the life of his brother, or to save his brother from great bodily harm, then the burden is upon the state to show that defendant's brother could have escaped from the difficulty without increasing his peril; and unless the jury believe from the evidence beyond a reasonable doubt that defendant's brother could have reasonably escaped from the difficulty without increasing his peril, then defendant had the right to strike the fatal blow. Whether the necessity was real or only reasonably apparent to the defendant, if he struck the fatal blow under these circumstances, and for the sole purpose of saving his brother's life, or to save his brother from great bodily harm, and his brother was without fault in bringing on the difficulty, then the jury must find the defendant not guilty." (c) "The burden is upon the state in this case to prove beyond a reasonable doubt that the defendant's brother was in fault in bringing on the difficulty, and that he could have reasonably escaped from the difficulty without increasing his peril, if the jury believe from the evidence that when de