fendant struck the fatal blow there was a present, pressing, imperious necessity for defendant to strike in order to save the life of his brother, or to save his brother from great bodily harm, and that defendant struck the fatal blow for the sole purpose of saving his brother's life, or to save his brother from great bodily harm. And it matters not whether such necessity was real or reasonably apparent; in either event, if the defendant struck the fatal blow for the sole purpose of saving his brother's life, or to save his brother from great bodily harm, when such necessity as stated above existed, or was reasonably apparent, and the state has not proven beyond a reasonable doubt that defendant's brother was at fault in bringing on the difficulty, or that he could have reasonably escaped from the difficulty without increasing his peril, then the jury must find the defendant not guilty." (d) "The court charges the jury that if Jim Mann brought on the difficulty with Thomas Holmes, and called Thomas Holmes a 'damn lie,' and said his (Thos.') mother had told him a damn lie, and that then Thomas struck Jim Mann, that under the law Thomas was without fault in bringing on the difficulty, if that is all he did to provoke the difficulty, and authorized and justified Thomas Holmes to strike Jim Mann." (e) "The court charges the jury that Major House is not on trial for not staying with Henry Mann after he was stricken, and that they must not, in this case, punish this defendant simply because said House went home to his sick family, instead of remaining with said Mann after he was stricken."

R. B. Kelly, for appellant. Wm. L. Martin, Atty. Gen., for the State.

COLEMAN, J. The defendant was convicted of murder in the second degree. The first exception was to the action of the court overruling an objection to the question, “Do you know of any bad feeling between defendant and deceased prior to the difficulty?" It was competent to prove bad feeling, as tending to show malice. "Bad feeling" is a fact to which a witness may testify. It stands in the category of health, sickness, good humor, anger, jest. Polk v. State, 62 Ala. 237. The next exception was to the ruling of the court, in sustaining an objection to the question, "State whether or not the hoe that Henry Mann had was of such weight and strength as that he could have killed a man within striking distance." The hoe and handle had been described to the jury. The fact attempted to be proven was within the knowledge of the jury, as much so as that of the witness. The witness was not an expert in any sense, and his opinion was worth no more than that of any other man. The objection was properly sustained. The next exceptions are to the refusal of the court to give certain instructions which were requested by the defendant. Charge (a), rev.14so.no.16-55

fused, ignores the question as to whether there was or not a reasonable way of escape to defendant, by which the necessity to strike might have been avoided, and charge (b) places the burden upon the state to prove affirmatively that defendant could have escaped from the difficulty without increasing his peril. We are referred to the case of Brown v. State, 83 Ala. 33, 3 South. 857. The doctrine declared in Brown's Case upon this point was repudiated in the subsequent case of Gibson v. State, 89 Ala. 121, 8 South. 98. There can be no necessity to kill if there is a safe way of retreat open to the slayer, available by the exercise of reasonable prudence. Cleveland v. State, 86 Ala. 2, 5 South. 426; Lewis v. State, 88 Ala. 11, 6 South. 755; Keith v. State, 97 Ala. 32, 11 South. 914. These principles sustain the ruling of the court as to charges (a), (b), (c), and (d), and there was no error in refusing them. It is well settled that the burden is not on the defendant to prove affirmatively that he was free from fault in bringing on the difficulty. This burden rests upon the state, when a case of self-defense is made out by the defendant; and if it appears that defendant was not free from fault in bringing on or provoking the difficulty the law will not shield him from the consequences of committing a homicide, the result of his own fault, although at the time of the killing there was a pressing necessity to strike to save his own life, and there was no mode of escape. Authorities supra, and cases cited; Webb's Case (Ala.) infra. Charge (e) is argumentative and misleading, and was properly overruled. There is no error in the record, and the judgment must be affirmed. Affirmed.

1. It is not error to excuse a juror, after he has been selected and sworn, because of sickness.

2. A special venire will not be quashed because two of the persons drawn were not summoned, when neither could be found in the county.

3. A written statement by defendant at his preliminary trial is admissible where it does not appear that the entire statement was not offered in evidence, or that any part omitted related to the homicide.

4. The examination of the sheriff as a witness, though not put under the rule with the other witnesses, was in the discretion of the court.

5. On trial for murder, an instruction as to self-defense is properly refused where it ignores the duty to retreat.

6. Malice is inferred from the use of a knife causing death, though it was only a pocketknife.

7. An instruction that defendant must be acquitted if he killed the deceased in self-defense in a quarrel is erroneous where the evidence tends to show that defendant was at fault in bringing on the difficulty.

On defendant's being arraigned, he pleaded not guilty. The court thereupon set the cause for trial on the 22d day of February, 1893, and ordered that 30 persons be drawn and summoned for the trial in addition to the regular panel. On the day set for the trial it appeared during the organization of the jury that only 28 of the 30 special jurors had been summoned, 2 of said jurors not having been found by the sheriff; that one of said jurors had left the county, and that diligent, but ineffectual, search had been made by the sheriff's deputy for both of said jurors. The defendant moved to quash the venire because said two jurors had not been summoned. The court overruled the motion, and the defendant duly excepted. The jury having been organized, the court adjourned until the next day at 9 o'clock a. m., and when it convened on that day one of the jurors announced that he was sick, and, "it being shown to the satisfaction of the court that said juror was unable to proceed with the trial of said cause, and incapacitated, it was ordered that said juror be discharged." To this action of the court the defendant objected, and, his objection being overruled by the court, he duly excepted.

The state examined as a witness the justice of the peace before whom the defendant testified on his preliminary examination, and identified by the witness a written statement of the defendant's testimony, sworn to and subscribed before him after voluntarily going on the stand in his own behalf. Upon the statement being offered in evidence by the state, the defendant objected to its introduction in evidence on various grounds, and, among others, the following: "The part offered has relation to parts not offered." The court overruled the objection, and admitted the statement in evidence. To this ruling of the court the defendant duly excepted. The statement as offered and admitted is as follows: "That is the knife with which I was cutting. Was cutting with the big blade. That is the knife with which I cut Harrison. With the big blade. I am right-handed." The knife referred to was exhibited to the jury, and the physician who was called to see deceased after the cutting, and after his death, testified that death resulted from a wound in the neck, made with a sharp instrument, which severed the jugular vein. The state introduced the sheriff as a witness, and the defendant objected to his testifying in the cause, "because all the witnesses had been put under the rule, lists had been exchanged, and the name of said De Shields [the sheriff] was not upon the list furnished the defendant by the state." The objection was overruled, and the said De Shields was put upon the stand, and testified to the de

fendant's having escaped from the jail while in confinement under the charge of the indictment; and defendant duly excepted. It was shown by the evidence that the killing was caused by the deceased's throat being cut with a pocketknife. The defendant, testifying in his own behalf, stated, among other things, that the deceased and one Kelly came to the house where defendant was boarding some time in the night, and, being refused lodging, became boisterous and troublesome. That on inquiring and learning that Kelly was one of the parties he told the landlady Kelly was a friend, and he would try to get him to go away. That he went out, and engaged Kelly in friendly conversation, and, while talking with Kelly, took out his knife and some tobacco, intending to cut the tobacco for his pipe. That deceased came to wards him with a stick, and struck him several blows; and that when he attempted to ward off the blows he finally struck at the deceased with the knife. The latter threw up his hand, and knocked the knife so that it struck his neck.

The defendant requested the court, in writing, to give the following charges, and separately excepted to the court's refusal to give each of them as asked: (1) "It is not necessary there should be actual danger of death or great bodily harm in order to justify the taking of human life; but if the jury are satisfied from all the evidence in the case that the circumstances attending the striking the fatal blow were such as to impress the defendant with a reasonable belief that at the time of striking the blow it was necessary in order to prevent death or great bodily harm to his person, then they must acquit the defendant, unless they further believe that the defendant was not free from fault in bringing on the difficulty." (2) "The court charges the jury that, while the law requires that Bob Webb should be in a situation of either real or apparent danger to life or of receiving grievous bodily harm, that that danger was imminent, and that he should be reasonably justified in striking, yet the law only requires that he should exercise his reason,-should act as a reasonable man would have acted under all the circumstances; and if, under those circumstances, a reasonable man would have believed that he was in danger of losing his life or of receiving great bodily harm, and that such danger was then impending, and said Webb did so believe, and was not the aggressor in the difficulty, and was free from fault, then he had a right to defend himself, even to the taking of the life of Jim Harrison." (3) "The court charges the jury that every man has a legal right to carry a pocketknife, and that the same is not, in contemplation of law, a deadly weapon, and that malice cannot be inferred from the use of such weapon in a sudden rencounter, not brought on by the defendant." (4) "The court charges the jury that a pocketknife is not an unlawful weapon, and that no malice

can be inferred from the fact that defendant had such a weapon in his possession." (5) "If the jury believe from the evidence that defendant was at his place of abode; that he went down stairs to induce his friend, Kelly, to go away; that he entered into a friendly conversation with said Kelly; that during that conversation he was attacked by Harrison; that he had good reason to believe that he was in danger of losing his life or suffering great bodily harm; that he could not retreat without increasing his danger; and that the fatal blow was struck under these circumstances,-then they must find the defendant not guilty."

George D. Parks and D. L. Cunningham, for appellant. Wm. L. Martin, Atty. Gen., for the State.

COLEMAN, J. The defendant was convicted of murder in the second degree. After the jury had been selected and sworn, but before the trial was put before them, one of the jurors was excused and discharged on account of sickness, it being shown that he was too ill to sit as a juror. There was no error in this action of the court. The precise question arose in the case of Hawes v. State, 88 Ala. 37, 7 South. 302. See authorities cited.

The defendant moved to quash the venire, on the ground that two of the persons drawn to serve as special jurors were not summoned. The evidence showed that one of the persons had left the county; that the sheriff made "diligent search" for both of them, and neither could be found in the county. There is no merit in the motion. Gibson v. State, 89 Ala. 121, 8 South. 98; Arp's Case, 97 Ala. 12 South. 301.

The state offered in evidence a written statement, voluntarily made by the defendant on his preliminary trial, and which at the time was signed by him. The ground of objection is, "Because a part of Webb's testimony is offered, and not all." It does not appear from the record that the part omitted, if any was omitted, related in any manner to the homicide; and, in the next place, there is no evidence to show that the entire statement was not offered in evidence. The statement is set out in the transcript, and seems to be complete in itself. If any part was omitted, there should be some evidence of the "omission. The objection itself does not furnish the evidence to sustain it. The state is not required, in the first instance, to bring out an entire confession or conversation; but, if any part is introduced by the state, the defendant is entitled, on cross-examination, to bring out all that was said at the time which explained, qualified, or threw any light upon the part introduced by the state. Burns v. State, 49 Ala. 370.

The examination of the sheriff as a witness, although not put under the rule with the other witnesses, was within the discretion of the court. We do not see that this discretion was abused in this instance.

Charge No. 1, requested by the defendant, and refused by the court, was faulty, in that it ignored altogether the duty of retreat. Keith v. State, 97 Ala. 32, 11 South. 914; Gibson's Case, 89 Ala. 121, 8 South. 98; Holmes' Case (present term) 14 South. 864. Charge No. 2 is subject to the same objection. Charges 3 and 4 assert incorrect propositions of law, and were misleading. A pocketknife may or may not be a deadly weapon. The knife used was introduced in evidence. It is nowhere described. In Nettles' Case, 58 Ala. 268-276, it is said: "We think a knife capable of making a wound 24 inches deep must be classed as a deadly weapon." That the knife in the case at bar was sufficient, in the hands of the defendant, to produce almost immediate death is clearly proved. Malice is inferred from the use of a deadly weapon. The weapon need not be an unlawful one. The fifth charge refused was faulty in this: that upon the facts predicated it demanded an acquittal of the defendant, although he may have been at fault in bringing on or provoking the difficulty which resulted in the death of deceased. No person can bring about a necessity to kill another, even to save his own life, and then plead the "necessity" in justification of the homicide. There was evidence tending to show he was not free from fault. Holmes' Case (present term). There is no error in the record. Affirmed.

1. On a prosecution of one for abandoning his wife, misconduct by the wife after the abandonment is no defense.

2. In such case it is proper to exclude the record in a suit by defendant against his wife, in which he procured a divorce, when the grounds of suit are not stated, and it is not shown that the divorce was given for acts of the wife before the abandonment.

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

Charley Hall was convicted of abandoning his family, and appeals. Affirmed.

The evidence showed the marriage between the defendant and his wife occurred on September 3, 1888, and they lived together until December 1, 1889, when the defendant separated from his wife, leaving her nothing but household and kitchen furniture, and that at the time of the abandonment of his wife the defendant was an able-bodied young man. The defendant offered to prove by the records that on August 13, 1890, he filed a bill in the chancery court of Coffee county for a divorce, and that a decree of divorce was duly rendered in said cause on the fourth Monday in October, 1890. The state objected to the introduction of this proof, which objection the court sustained, and the defendant duly excepted. On the examination of one of the

state's witnesses, the defendant, on crossexamination, asked the witness, if defendant's wife did not, about 13 months after he separated from her, have another bastard child? The state objected to the question, the court sustained the objection, and the defendant duly excepted.

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

HARALSON, J. The statute under which the defendant was indicted, cannot be construed to mean, that it is criminal, under any and all circumstances, for the husband to abandon his wife. He may do so for any divorcible cause. Carney v. State, 84 Ala. 7, 4 South. 285; Boulo v. State, 49 Ala. 23. As an excuse for abandoning the wife, the husband cannot set up misconduct of which she was guilty after the abandonment, unless such misconduct is connected in some way with, and tends to illustrate and explain similar acts committed by her before the separation, which are pleaded by him in justification for leaving her. In this case, there was no proof of infidelity committed by the wife during the marriage, and the evidence offered by defendant for the purpose of showing that after he abandoned her, she was guilty of adultery, was properly excluded. Alsabrooks

v. State, 52 Ala. 24.

The indictment was filed the 3d of October, 1890. The abandonment as shown, occurred about the 1st of December, 1889, after the defendant had lived with his wife, a little over a year. At the time of the marriage she had two children, and one in about four months thereafter, which the proof shows he acknowledged to be his child. The defendant offered to prove by a certified transcript of the record, that on the 13th of August, 1890, he filed his bill in the chancery court of Coffee county against his wife, for a di vorce from her, and that on the fourth Monday in October following, he was, by the de cree of that court, duly and legally divorced from her. It was not shown or stated, as it ought to have been, on what ground for a divorce defendant filed his bill, and on which it was granted, or when the divorcible act occurred. For aught appearing, it may have been for cause happening after he abandoned her. The transcript of the divorce suit was properly excluded. Affirmed.

RYAN v. STATE.

(Supreme Court of Alabama. Feb. 8, 1894.) CRIMINAL LAW-CONFESSIONS-ADMISSIBILITY.

On a trial for hog theft, prosecutor testified that he lost a black sow, weighing from 50 to 70 pounds. Another witness testified that at the time of the loss he found defendant with a freshly cleaned sow which Would weigh about 50 pounds; that, judging from the hair left on her, it was black; that defendant told him he had gotten the sow from one R.; that it had gotten out of the pen, and that he had killed it; that defendant's

daughter came up, and said she did not know he had a hog. Held sufficient evidence of the corpus delicti to warrant the admission of de fendant's confession.

Appeal from circuit court, Marengo county; James T. Jones, Judge.

William Ryan was convicted of grand lar ceny, and appeals. Affirmed.

The only question which is considered by the court is sufficiently stated in the opinion. After the introduction of all the evidence, the defendant requested the court to give the general affirmative charge in his behalf, and duly excepted to the court's refusal to give the same.

I. I. Canterbury, for appellant. Wm. L. Martin, Atty. Gen., for the State.

COLEMAN, J. The defendant was convicted of the larceny of a hog, which, under the statute, is a felony. The only question deserving consideration arises upon the confessions of the defendant, which were admitted against his objections. That the confessions were free and voluntary is not controverted. It is contended that there was not sufficient evidence of the corpus delicti to authorize the introduction of the confessions. The rule which prevails in this state is that a conviction should not be had on the extrajudicial confessions of the defendant, unsupported by any corroborating facts and cir cumstances; proof aliunde of the corpus delicti is required. Positive, direct evidence of the corpus delicti is not indispensable to the admissions of confessions. Whenever facts and circumstances are proven from which a jury might legally infer that the offense has been committed, the confessions are admissible. The proven facts and circumstances, and the confessions of the defendant, may then be weighed and considered together; and if, upon the whole evidence, the jury are satisfied beyond a reasonable doubt, both as to the corpus delicti and the identity of the defendant as the guilty perpetrator, it be comes their duty to convict. Winslow v. State, 76 Ala. 42; Mathews v. State, 55 Ala. 187; Colquitt v. State, 61 Ala. 49; Johnson v. State, 59 Ala. 37.

The trial took place at the fall term of the court, 1893. One Jackson testified that in November, 1892, about a year before the trial, he lost several shoats; that one was an unmarked black sow shoat, with a white list under stomach; that it would weigh from 50 to 70 pounds, perhaps not more than 50 or 60 pounds, and that it had never been seen since; that the hogs ranged near one Thomas, who knew them better than witness. Thomas testified that at the time Jackson lost his hog he ascertained that defendant had killed a hog; that it was on Sunday, and about dark he went to defendant's house; found him with a freshly cleaned hog; that It was a sow shoat, unmarked, and would weigh about 50 pounds, and, judging from the hair left on the hog, it was black, with

a white list on back and foreshoulder; that defendant said he got the shoat from one Eliza Richardson; that it got out of his pen, and he killed it; that witness called defendant's daughter up, who, when asked about the hog, said in the presence of the defendant that she knew nothing of the hog, and did not know defendant had a hog in his pen. The record is silent as to whether de fendant made any response to this statement, made in his presence. Upon this proof the court admitted the confessions of the defendant, which were "that the hog killed was Mr. Jackson's hog, that he knew it was Mr. Jackson's hog when he killed it," and then made some excuse for killing it, which need not be stated. The facts and circumstances proven were sufficient to let in the confessions, and to show that there was no error in the refusal of the court to give the general affirmative charge for the defendant. Arfirmed.

ROBERSON v. STATE.

(Supreme Court of Alabama. Feb. 8, 1894.) INTOXICATING LIQUORS-UNLAWFUL DISPOSITIONINDICTMENT.

1. Since the general statute regards only the "sale" of spirituous, vinous. or malt liquors, and the local statute, applying to certain parts of Shelby county, prohibits the sale, gift, or other disposition of such liquors or "intoxicating bitters,' an indictment charging that defendant "did sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors, intoxicating bitters, or intoxicating drinks, without a license, and contrary to law," no particular part of the county being mentioned, charges no offense under either statute.

2. "Intoxicating drinks" are not necessarily either "intoxicating bitters," or "spirituous, vinous, or malt liquors."

Appeal from Shelby county court; John S. Leeper, Judge.

Ed Roberson was convicted of disposing of liquor unlawfully, and appeals. Reversed.

The appellant was indicted, tried, and convicted under the following indictment: "The grand jury of said county charge that before the finding of this indictment that Ed Robinson, alias Ed Roberson, did sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors, intoxicating bitters, or intoxicating drinks, without a license, and contrary to law, against the peace and dignity of the state of Alabama." There is only one question presented on this appeal, and that arises upon the court's overruling the defendant's demurrer to the indictment. The grounds of demurrer interposed to said indictment were as follows: "First. Because there are three alternative or disjunctive averments in said indictment as follows: (1) 'did sell;' (2) 'give away;' (3) 'or otherwise dispose of,'-liquor, etc., without a license, and contrary to law; and two of said averments, viz. 'give away,' and 'otherwise dispose of,' liquor, etc., without a license, and contrary to law, do not charge any criminal

offense known to the law. Second. Because it is alleged in the alternative that defendant sold, etc., (1) 'spirituous, vinous, or malt liquors;' (2) 'intoxicating bitters;' (3) 'or intoxicating drinks,'-without a license, and contrary to law; and because one of said alternative averments, to wit, that he sold, etc., intoxicating drinks, without a license, and contrary to law, does not charge any criminal offense known to the law. Third. Because it charges that the defendant gave away, or otherwise disposed of, liquor, etc., then this is not unlawful, unless it is charged to have been done in violation of some local [law (?)] prohibiting the same, and the indictment does not allege in what prohibited locality the liquor was given away or sold."

Longshore & Beavers and Brown, McMillan & Leeper, for appellant. Wm. L. Martin, Atty. Gen., for the State.

MCCLELLAN, J. The demurrer to the indictment in this case should, in our opinion, have been sustained. The indictment charges that the defendant "did sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors, intoxicating bitters, or intoxicating drinks, without a license, and contrary to law, against the peace and dignity of the state of Alabama." Clearly, the giving away, charged alternatively, is not an offense against the general laws of the state; and the same is true in respect of the charge that the defendant otherwise disposed of vinous, spirituous, or malt liquors, etc.; and, as there are intoxicating bitters or intoxicating drinks which contain neither vinous, spirituous, or malt liquors (Allred v. State, 89 Ala. 112, 8 South. 56), even the sale of such bitters or drinks is not necessarily a viola. tion of general laws on the subject. So that, upon each of these considerations, the indictment here charges no offense against the general statutes on the subject of the sale of spirituous, vinous, or malt liquors. But there is a special statute prohibiting the sale, gift, and other disposition of spirituous, vious, or malt liquors, or intoxicating bitters, in certain defined localities in Shelby coun ty, where this indictment was found. Of this act we take judicial cognizance. Carson v. State, 69 Ala. 235. The indictment pursues the language of this statute in charging the sale, gift, or other disposition of spirituous, vinous, or malt liquors, or intoxicating bitters; but it goes further, and charges alternatively that the defendant "did sell, give away, or otherwise dispose of

* intoxicating drinks," and it does not allege that the transaction occurred in one of the several separate districts within Shelby county to which the special act applies. There are intoxicating drinks-beverageswhich are not, and do not contain, spirituous, vinous, or malt liquors, as we have seen. In the ordinary use of the terms "intoxicating bitters" and "intoxicating drinks"-in com