81 Ala. 20
Ala.
1886
CLOPTON, J.

— The record does not show that any day was set, or special jurors summoned for the trial of the defendants, though the indictment charged a capital offense. Notwithstanding the defendants, on a former trial, were convicted of murder in the second degree, which operates an acquittal of th6 higher grade of the offense, in order that *30they may take advantage of such former acquittal, it must, under our rulings, be specially pleaded. The record can not be introduced in evidence under the plea of not guilty. Had the plea of former acquittal been interposed and sustained by the proof, or admitted by the prosecution, the charge of the capital offense would have been, in law and fact, eliminated from the indictment; the trial would have been only on a charge of murder in the second degree; and the defendants would not have been entitled to a special venire. The defendants, so far as shown by the record, did not interpose the special plea, but went to trial on the plea of not guilty. The defense of autrefois acquit must be regarded as waived. There was, therefore, no modification of the indictment as originally found by the grand jury. As the indictment charges a capital offense, and there was no plea of former acquittal, the same proceedings should have been had in organizing the jury, as if there had not been a former trial, or verdict of acquittal. — Richles v. The State, 68 Ala. 538; Jackson v. The State, 78 Ala. 471. The proper practice is stated in De Arman v. The State, 77 Ala. 10.

In respect to the relevancy of evidence, the general rule is, that it must be confined to the points in issue, and no circumstance is admissible, which does not tend to establish a fact material to the prosecution or defense, or from which no presumption or inference can be reasonably drawn in reference to a material fact or inquiry involved in the issue. It is often difficult to determine when a fact or circumstance is too remote to aid the jury in arriving at a conclusion on the issues to be tried. But it may be said generally, that all parts of one continuous transaction, though not shown to have any immediate connection with the offense — the culmination of all the circumstances — and facts, proximate to the consummation of the crime, which tend to shed light on the main inquiry, are admissible. The occurrences in which the deceased, Jule Jordan and Mason Taylor, were involved at the place of the homicide and during the same evening, may be regarded as constituting a continuous transaction, though brief intervals of time may have intervened; and the declaration of Jordan, that he would put a light hole through any one who struck Mason Taylor, tends to illustrate his motive and purpose in addressing deceased, when he afterwards struck Taylor. — Armor v. The State, 63 Ala. 173 ; Mattison v. The State, 55 Ala. 224. The evidence being admissible against one of the defendants, could not be excluded on the objection of the other, though inadmissible against him. He should relieve himself from its influence by a charge limiting its operation.

*31The prosecution did not bring out any declarations of Handy made after the act was done, nor introduce evidence that he had fled, and his subsequent acts and declarations were too remote to form part of the res gestae. The evidence in reference to his conduct and statements as to surrendering himself and 'his refusal to flee, was properly excluded. Its admission would have been to allow him to make evidence for himself. — Oliver v. The State, 17 Ala. 587 ; Chamblee v. The State, 78 Ala. 466.

A sufficient predicate was laid to admit the dying declarations. The deceased repeatedly declared his conviction that he would die, which, it does not seem, was impaired by the expressed opinion of the witness, Johnson, that he might get well. The jury, however, may consider the character of the dying declarations, and the circumstances under which they were made, in determining the weight to which they are en'itled.- — Ward v. The State, 78 Ala. 441.

Founded on the many and various considerations affecting the credibility of a witness, and the necessity for the ascertainment of the truth, that the jury should be left free and unembarrassed in determining what witnesses and parts of evidence they will credit, the tendency of modern authority is to relax and restrict the application of the maxim, falsus in uno,falsus in omnibus. The jury are not bound to wholly discredit a witness, if his testimony as to material facts is corroborated by other credible and unimpeached witnesses. In Grimes v. The State, 63 Ala. 166, it is said : “We are prepared to follow the line of authorities which hold the maxim is not a rule of law, operating a disqualification of the witness, to be given in charge to the jury, as imperatively binding them — that it is to be applied by the jury according to their sound judgment, for the ascertainment and not for the exclusion of truth.” The charge given by the court is in accordance with this rule. It does not instruct the jury they are bound to disregard the testimony of the impeached witnesses, but left it to their sound discretion and judgment. In Childs v. The State, 76 Ala. 93, the charge, held to be erroneous, substantially instructed the jury, that they might disregard all the evidence of the witness, though he may have made an untrue statement in mistake. The present charge is based on the wilful and corrupt false swearing of the witnesses. In such case, there is no error in instructing the jury, that they may disregard their evidence. If the defendants apprehended that the jury might consider the instruction as imperative, or if the testimony of the witnesses was corroborated by other *32unexceptionable evidence, they could have limited the effect and operation of the maxim by an explanatory charge.

The charges requested by tlie prosecution, relating to the constituent elements of murder, the presumption arising from the use of a deadly weapon, and the onus of overcoming it, and to the doctrine of self-defense, are in harmony with the established rulings of this court. If regarded abstract as to one of the defendants, it would not operate a reversal of the judgment. Each of the charges requested by defendants in respect to the plea of self-defense is defective in omitting the requisite hypothesis of freedom from fault in bringing the difficulty on, and of no other reasonable means of escape — one or both. An instruction may be properly refused, which ignores either one of these essentials, unless the evidence in respect thereto is without conflict, and of such character that no inference could be reasonably drawn that the defendant was at fault, or that there was another reasonable mode of escape, though the existence of neither is presumed, nor the burden of disproof imposed on the defendant.— Tesney v. The State, 77 Ala. 33; Storey v. The State, 71 Ala. 329; De Arman v. The State, Ib. 351; McDaniel v. The State, 76 Ala. 1.

There can be no question that if Handy aided and abetted his brother in the commission of the homicide he is a principal, responsible the same as his brother; that is if he acted in concert, afforded aid, encouraged, or consented to the particular act. But though present, if he cut the deceased as he was advancing to strike his brother, without preconcert, or knowledge, or intimation of his intent or design, and without reference to, and independent of his purpose or act, he can not be convicted as aiding and abetting. When a particular intent or formed design is requisite to constitute an offense, knowledge of its existence and a common purpose to perpetrate the offense must be shown before a person can be convicted of aiding and abetting. We so held on the former appeal. — Jordan v. The State, 79 Ala. 9 ; State v. Hildreth, 51 Amer. Dec. 369, and notes.

While the charges given by the court, in respect to Handy’s aiding and abetting, correctly assert the general rule, and the defendants had the privilege to ask instructions defining the essentials to constitute aiding and abetting in the commission of the crime of murder, and while a common purpose may be established by circumstantial as well as direct evidence, the special instruction that the jury may infer community of purpose or design from the facts hypothetically stated in connection with the other evidence, is objectionable, though by itself it might not work a re*33versal. The ascertainment of truth is not assured by charges which select parts of the evidence, and by giving them special prominence substantially instruct the jury that they authorize the inference of a material and essential fact in connection with the other evidence, unless such inference is a conclusion of law from the entire evidence. They are instructions upon the effect and sufficiency of the evidence, and are calculated to withdraw the consideration cf the jury from the other evidence or the want of other evidence. Among the facts stated is the threat of Jule on the occasion of the first difficulty concerning Taylor, when Handy was not present and of which it does not appear that he was afterwards informed. A fact or circumstance of which he was ignorant, does not tend to show community of purpose. Furthermore, the charge is calculated to impress the jury that they are authorized to infer community of purpose or design, notwithstanding they may have a reasonable doubt of its existence. While the evidence may be sufficient to show a resolution on the part of Handy to protect his brother in any difficulty in which he might be engaged, and to convict him of murder, if he had inflicted a mortal wound, or contributed to the death of the deceased as a distinct offense independent of his brother’s, in order to convict him as an aider and abetter, the jury should be satisfied, beyond a reasonable doubt, that there was either a previous understanding to kill or injure the deceased, or that he had knowledge of the intent or design of his brother, or of facts from which such knowfledge may be inferred.

Reversed and remanded.