The indictment charged murder in the first degree. At the trial the solicitor, with the approval of the court, toоk a nol. pros, as to the charge of murder- in the first degree, and the cause proceeded to trial on the charge of murder in the second degree. The verdict of the jury found the defendant guilty of manslaughter. The evidence lor the state tended to sustain the charge of murder, and that for the defendant tended to establish the plea of self-defense. The evidence being in conflict, the general charge was properly i refused.
The deceased came to- his death as the result of a knife wound inflicted by defendant at about 1 o’clock at night. The state, over the objection of defendant, was permitted to prove by the sheriff -that the next, day he found the body on the back seat of an automobilе, at the scene of the fatal difficulty, and that there was no knife on or about the body. The evidencе for defendant tended to prove that deceased had a knife at the time of the difficulty, and that in thе difficulty deceased had cut at-defendant, cutting his shirt in two places. The shirt of defendant with two placеs cut was exhibited to the jury. It is insisted that the testimony of the sheriff that he found no knife on or about the person of deceased on the day following the night of the difficulty, is too remote to be relevant to the issue being tried.- The evidence was negative and of little probative force, and, while somewhat remotе from the time of the fatal difficulty, we hold that it was not improper to allow the sheriff of the county to testify as to the surroundings at the time he found the body. This would include a description of the locus in quo and everything connected with it which would shed any light on the killing. In view of defendant’s testimony that he was attacked by the deceased with a knife, the absence of a knife on or about the person of deceased in the automobile, at the place where the difficulty occurred, though negative in character, is relevant, in the absence of testimony showing or tending to show a change in the surrounding conditions. Eden v. State, ante, p. 37,
Before there had been any evidence of selLdefense offered, the defendant offered to prove by defendant’s father an uneommuni *202 cated threat claimed-, to have been madе in the presence of one Jernigan and communicated to defendant’s father. In the first place, this was hearsay, and, in the second place, it was prematurely offered. As to the second objеction, the defendant stated to the court that he éxpected to offer evidence of self-dеfense so as to make the testimony relevant. This may be done in order to facilitate the trial, but is always in the discretion of the court.
In his argument to the jury, one of :the attorneys representing the .state said: i'Human life has become too cheap in Alabama.” There was objection and exception .td this remark, whereupon the court said: “I will give you the exception. I think so ¡too.” We hold that the statemеnt of the attorney was not objectionable. The remark ¡was the expression of an opinion based upon common knowledge as. to conditions, and was not i the statement of a fact not in evidеnce. The ruling of the court on the objection was free from error. But the remark of the judge made in сonnection with the ruling is very different. Being given its full interpretation, this statement is to say to the jury: “I think human life has becоme too cheap in Alabáriia.” Remarks made by a trial judge in the presence and hearing of the jury in mаking rulings incident to the trial, will have the same effect as formal instructions. West v. State,
Refused charges 18 and 3'ignore the doctrine of “freedom from fault and retreat.”
Refused charge 4 is elliptical.
Refused charge 15 was aрproved. in hfec verba by this court in Black v. State,
Refused charge 12 is approved by the Supreme Court in Ex parte Johnson,
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.