[Lang v. The State.]

of the accused's belief of imminent peril.-Franklin v. State, 29 Ala. 14; Pritchett v. State, 22 Ala. 39; Storey v. State, 71 Ala. 329; DeArman v. State, 71 Ala. 357. The deceased, at the time the fatal blow was struck, was making no demonstration of violence against the defendant, spoke no words, and did no act, which could tend, even remotely, to produce in the mind of the defendant any apprehension of harm. Under the circumstances, the evidence of the deceased's character for turbulence and violence was not admissible.

The credibility of the witnesses, who may prove confessions, and of the confessions themselves, are legitimate subjects of inquiry, and may be impeached in any authorized mode. Though the defendant may have confessed the crime, he may show that the offense with which he is charged was not in fact committed, or that he was not the guilty agent. These are the immediate issues to be tried, and any evidence is pertinent, which properly tends to prove or disprove them, and to elucidate the main inqury. But confessions of the specific offense are distinguishable from admissions and declarations of incidental and collateral facts, though they may be made at the same time. An investigation of the truth or falsity of such admissions and declarations would raise collateral inquiries, multiply the issues, and by diverting the minds of the jury from the main inquiry, confuse their deliberations. Had the defendant been allowed to prove, in order to show that his declaration of the cause of his striking the deceased was false, or to impeach the witnesses, who testified to such declarations, that some person other than the deceased struck him with a skillet on a previous occasion, it would have been competent for the prosecution to introduce rebutting and contradictory evidence. An inquiry as to the details of the previous difficulty would have been inaugurated, and the main issue rendered materially dependent upon ascertaining whether the deceased struck the defendant, or whether the defendant had reason to believe that he struck him. The evidence of the witness Patton was properly excluded.

The court, at the request of the solicitor, instructed the jury: "If the defendant, in this county, before the finding of this indictment, purposely killed the deceased by striking him with a base ball bat, after reflection, with a wickedness or depravity of heart toward the deceased, and the killing was determined on beforehand-even a moment before the

[Lang v. The State.]

fatal blow was struck--the defendant is guilty of murder in the first degree." In quoting the charge we have inserted the word heart where "heat" occurs in the record, regarding and treating its use as a mere clerical mistake in copying, which the charge itself corrects. The statute declares, “every homicide perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious and premeditated killing," is murder in the first degree. In Mitchell v. State, 60 Ala. 26, it is said that to come within the last clause of the statutory definition, "the act must be qualified by each of the named adjectives,"-willful, deliberate, malicious and premeditated which "may be grouped under the very expressive phrase, formed design.” Purposely killing is intentional, willful; after reflection is deliberation; with a wickedness or depravity of heart towards the deceased, is the highest grade of malice; and determining on the killing beforehand, is premeditation. The statute does not fix any length of time as requisite to deliberation or premeditation. If reflected and determined on before the killing, however brief may be the period, the law concludes a formed design. Com. v. Drum, 58 Penn. St. 9. While, as we have said in other cases, it is much the better practice to use the statutory words in defining the highest degree of murder, which can not be simplified, the foregoing analysis of the charge shows, that its hypothesis contains and sets forth, though in different phraseology, all the statutory elements of murder in the first degree. Floyd v. State, 82 Ala. 16.

The charge in reference to reasonable doubt asserts correct legal propositions, as settled by several decisions of this court. It may be obnoxious to criticism as being somewhat involved and argumentative, but neither giving nor refusing such charge will cause the reversal of the judgment.-MeLeroy v. State, 77 Ala. 95.

There is no error in the other rulings of the court.



100 217

[Hawk v. The State.]

Hawk v. The State.

Indictment for Murder; Application for Change of Venue.

1. Change of venue; bill of exceptions.-Though the ruling of the trial court refusing an application for a change of venue in a criminal case may now be reviewed and revised on appeal taken after final judgment of conviction (Code of 1886, § 4485), and though the judgment-entry shows the action of the court on such application, it is necessary, in order to bring such a case up for review, that there be a bill of exceptions setting out the evidence and showing exception to the ruling of the court.

2. Bill of exceptions; selection of jurors.-The ruling of the trial court in reference to the selection of certain jurors can only be reviewed by bill of exceptions properly framed. It is not sufficient that the judgment-entry recites exceptions were taken to the action of the court in reference thereto.

APPEAL from Jackson Circuit Court.

Tried before Hon. JOHN B. TALLEY.

Appellant was indicted for the murder of John Smith. He made application for change of venue, which application was denied. Exceptions were taken to the selection of certain jurors. Hawk was found guilty and sentenced to the penitentiary for forty-five years. An appeal was taken. bill of exceptions appeared in the record.

T. N. MCCLELLAN, Attorney-General, for the State.


SOMERVILLE, J.-An application for a change of venue in a criminal case may now be reviewed and revised on appeal to this court, taken after final judgment of conviction. Code of 1886, § 4485.

But in order to bring such a case up for review, however, there must be a bill of exceptions setting out the evidence upon which the trial court acted, and duly reserving an exception to the ruling of the court in refusing to grant the application. It is insufficient for the action of the court to be shown by the judgment-entry alone, without a bill of exceptions.

The same is true of the rulings of the court in reference to the selection of certain jurors, to which the judgment

[Carney v. The State.]

entry recites that exceptions were taken. These rulings can be reviewed only by bill of exceptions containing the evidence on which the court based its action.

There is no bill of exceptions contained in the record, and the appeal must be dismissed.

Carney v. The State.

Prosecution for Abandonment of Family.

1. Abandonment of family; Code of 1886, § 4047.-To come within the meaning of the statute providing punishment for abandonment of family, it is not necessary that the danger of becoming a burden on the public, in which the abandonment of the husband or parent places his family, must be immediate or imminent, and not dependent on any future contingency, however probable in the ordinary course of events. It is a question for the jury, whether, under all the circumstances of the case, the abandoned family would probably become a burden on the public by reason of a contingency likely to happen within a reasonable time, and in the ordinary course of events.

2. Same; evidence.-Facts bearing proximately on the probability of the abandoned wife becoming a burden on the public are admissible in evidence in a prosecution for abandonment of family.

3. Same; wife's infidelity.-Abandonment is not excused by suspicion of the wife's infidelity based on rumors, or hearsay evidence. Hearsay and remote evidence of such infidelity will be excluded on trial for abandonment.

APPEAL from Mobile City Court.

Tried before Hon. O. J. SEMMES.

This was a prosecution for abandoment of wife and child. The witnesses for the State testified that William Carney, an able bodied man and able to support his wife, was married to Kate Nicholas in February, 1886, and lived with her eight days and then abandoned her; that said Kate Nicholas was the mother of a child before she married the defendant, and that after the marriage the defendant admitted that he was the father of the child; and that the child and mother had been supported and maintained, both before and after the marriage of the mother, by her brother-in-law.

The defendant testified, that after he had been married eight days he had to leave home to sit up with his brother's corpse; that he was absent from home all one night and until about twelve o'clock the night following; that his clothes got wet and he went home to get some dry clothes; that his wife

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[Carney v. The State.]

came to the front door in her night clothes and let him in; that when he got in he found his bed-room door ajar, and went in there; that when he went in he saw some man's shoes by the fire-place and asked whose they were, and his wife replied that they were her brother's shoes; and about that time he heard some one move in the bed and as he looked around a man turned his face toward the wall and pulled the cover of the bed over his head; that the cover on the outside of the bed was thrown back and the bed looked as if two persons had been occupying it; that he took his clothes and left, and never went back. The defendant also denied that he was the father of his wife's child. A brother of defendant's wife testified, in rebuttal, that he slept in his sister's bed that night until two or three o'clock; that he lived in the same house with his sister.

The defendant also produced evidence, by cross-examination of the State's witnesses, that his wife was a woman of good health and had been supported, both before and ever since her marriage, comfortably and well by her brother-inlaw, and she was still being so supported. The State asked the witness, Judge, who so supported the defendant's wife, whether he also supported his mother? The defendant objected to this question, but the court overruled the objection. The witness answered that he did.

The defendant then offered to testify that he went, in consequence of a message that he had received, to an assignation house in search of his wife, and was refused admittance, but while watching from the outside, heard female voices within and saw a woman, whom he believed to be his wife, step out the back way and get over the fence, and that the keeper of such assignation house subsequently told the defendant that such woman was his wife, and that she frequently visited such house of prostitution. This was before the defendant saw a man in the bed of his wife. But the court refused to allow him to so testify.

There was a variance between the testimony of the witness, Judge, and that of his wife, both of whom were State's witnesses, as to the health of the defendant's wife; the witness, Judge, testified that it was not good, while his wife testified to the contrary; the defendant asked said Judge whether or not his wife had as good an opportunity of judging of the same as he himself had. The court sustained an objection to this question.

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