103 So. 694
Ala. Ct. App.
1924

*1 20 ALABAMA APPELLATE REPORTS 412- rеserved, jury. Exception ¡agreement to'the ac- denee to was as between defendant and' give up brought decedent toas when was to defendant the court. This error tion of to ant’s been corrected at that possession to premises tending- of held relevant as in the defend- the attention of the court explain presence parties of of diffi- trial, and motion for a should new controversy culty, light and to throw on time. the refusal Eor possession. that time about to grant for a the motion new the court to of judgment trial, must be re- of conviction 169(2) <&wkey;>l 7. Criminal law of tes- —Exclusion versed. to timony as matters shown other evi- rehearing granted; application dence held harmless. aside; judgment affirmance is set of 'Where decedent was shot one of de- reversed, judgment conviction is fendants after altercation as to premises deceased, the cause is remanded. to sold exclusion of evi- payment premises'- dence as to was when on harmless, held to be made where deed in payments. (103 694) evidence set dates of out 138.) et al. STATE. Div. <&wkey;364(2)— 8. Criminal law noth- Proof (Court Appeals ing was said in defendants’ June conversation pri- Alabama. Rehearing 16, 1924.) to homicide Dec. about trouble with decedent' Denied gestee. held inadmissible res as Discharge jury law Criminal ,<&wkey; 182 — prosecution, proof In murder that on road verdict expiration without going place of homicide had a defendant. term acquits another, nothing- conversation with in which occurred, jury something Unless has decedent, going trouble with sworn, legally necessitating were of withdrawal there to have admissible; trouble with held in- therefrom, discharge jury without -such conversation res- expiration acquits of term and before gestas. verdict defendant. <§^(69(1) de- 9. Homicide as —Evidence juror’s <@^!84 2. Criminal law —Death fendants’ homicide- prior discharge jury held mother require party uninterested irrelevant. held murder trial. prosecution, proof In murder road' on Where, during trial, a murder the mother going defendants had a jurors duty died, it was of one of the with another conversation ested about an uninter- discharge jury trial court and de- the clare party irrelevant issue. a mistrial. <&wkey;364(i/2) 10. Criminal law Contemporane- — lav; <&wkey;>994(I) 3. Criminal duty —Clerk’s setting declarations, by party ous made out judgment on enter minutes of court intended object journey, on are ad- purpose, evidenced notes. by bench gestee. missible res (cid:127)Where notes were sufficient Contemporaneous declarations, made show, prosecution, judgment in murder what party setting journey, object out on a as to duty be, was intended to ter evidenced it was clerk’s to en- going, purpose in admissible res. judgment minutes of intended as gestee going. of act by bench notes. i&wkey;>!56(2) Homicide <&wkey;>!84 not placed Criminal law jeopardy —Proof —Defendants go threaten did not to decedent’s house- jury , double held incompetent. trial without consent. former their prosecution, proof In murder that defend- placed jeop- held not Defendants in double decedent’s, ant, going in conversation on road by discharge ardy, 1901, 9, within Const. of in § place, any promise, threat, did not make consent, on former trial statement that he was to decedent’s necessity view of Code where § any difficulty with, house to have or trouble discharging arose death of mother him, incompetent. jurors. of one of <&wkey;>l58(l) 169(2)— <&wkey;l 12. Homicide defend- 5. Criminal lav/ error Any —Proof negro overruling objection ant to look for a on morn- asked wit- ing of homicide held incompetent. harmless. held ness prosecution, proof prosecution, error, any, In that defend- murder negro” ant morning overruling to look “that asked witness incompetent; bought of homicide was it be- land from deceased defendants, date of harmless, showing uncommunicated motive. where deed purchase evidence, it was <&wkey;>l56(2) 13. Homicide defend- contended it was not correct. —Proof tell codefendant ant wanted agree- <&wkey;>!69(2) 6. Homicide go to> down to any purpose —Evidence decedent’s ment between deceased rela- incompetent. held killing preceding tive altercation proof prosecution, In murder that defend- arose held relevant. ant did tell his codefendant he wanted go any purpose deceased Where killed after alterca- him down to decedent’s for incompetent. defendant, tion on sold to him held evi-. igcsFor Digests see topic Key-Numbered cases and KEY-NUMBER in all and Indexes *2 v. STATE Alа.App.y' competent cal tending as condition of codefendant was <&wkey;448(3) held ob- Question law Criminal 14. — parties relative of show conditions wit- calling ‍‌​​​‌​‌‌‌​​​‌‌​​​‌‌‌‌​​‌​‌‌‌​​​​​​​​‌‌‌​​‌​‌‌‌‌​‍jectionable conclusion of for at time of homicide. ness. question prosecution, “whether In murder &wkey;>388 22. Criminal law of witness’ —Proof arranging sold move house” decedent was experimental properly ex- observations held calling objectionable him defendants for conclusion cluded, where conditions not shown of witness. same at time of homicide. <&wkey;l69(2)— that Proof defendant prosecution, proof In murder Homicide 15. of defend- prop- possession experimental never surrendered had ants’ witness’ observations as to competent. erty deceased held sold state’s what witness on horseback could have difficulty, prosecution, seen deceased made some where months In murder properly homicide, ditions were excluded, held altercation as where killed after proof deceased, that defend- shown be same as those sold existing possession, and surrendered at time homicide. had never ant stayed family in a certain had his that he and house thereon <&wkey;>334 party 23. Criminal law of- —Burden on competent. deceased, was sold observations, fering experimental evidence of proof &wkey;338(3) similarity to show Homicide essential conditions. 16. —.Exclusion leg impediment in his that defendant had party offering Burden is on evidence of experimental harmless. similarity held observations show proof in prosecution, essential conditions act exclusion under murder observa- In leg, impediment tion. in his had an that defendant crutches, just gotten off that he had <&wkey;388 24. Criminal law similar- —Substantial harmless, such full benefit he had where held ity, observation, with act under sufficient testimony physical condition as to his size and experimental admit evidence of observations. testimony physician. in his own and similarity, A substantial with act ob- under prop- &wkey;390Objection held servation, law Criminal 17. is sufficient to admit evidence of ex- — calling testi- erly perimental observations. sustained understanding. mony I) <&wkey;736( law condi- 25. Criminal —Whether objection prop- prosecution, held In murder substantially similаr tions warrant admis- erly defendant wheth- sustained experimental of evidence of observa- sion tions is “understanding” between there er and his for court. move as to a codefendant substantially Whether conditions are sim- deceased. house sold ilar act under observation to warrant ad- <&wkey;390 immate- held law experimental Criminal —Proof 18. mission of evidence of observa- motive. uncommunicated ordinarily to call for rial and is tions court to determine. proof prosecution, defend- murder In <&wkey;l169(2)— Criminal 26. law Exclusion paid other de- to enable order ant had experimental witness’ evidence of observa- property de- sold deed to make a fendant scene tions at held harmless. homicide an un- called immaterial and ceased was communicated prosecution, murder In exclusion of evi- motive. experimental dence of witness’ scene of homicide ants observations <&wkey;156(1) defendant harmless, Homicide held where defend- —Proof pistol, carrying had been testimony been had full benefit of such incompe- parties, held оther threatened tent. other witnesses. <&wkey;829(!) 27. Criminal law re- —Refusal proof prosecution, that defend- murder In quested charges charges given covered is time, carrying pistol for some ant had been not error. par- threatened that he had been requested charges covered, Befusal of incompetent, evi- where ties before charges given, charge, court’s oral justified is not show that did not dence error. carrying threats homicide. 14) <&wkey;300( Homicide of defend- —Refusal charge ‍‌​​​‌​‌‌‌​​​‌‌​​​‌‌‌‌​​‌​‌‌‌​​​​​​​​‌‌‌​​‌​‌‌‌‌​‍relating to ant’s self-defense held not <&wkey;164— Evidence as Homicide erroneous. incompetent. held condition of defendant prosecution, In refusal of murder defend- physician prosecution, where charge relating ant’s to self-defense held physical- weak defendant was had ly, erroneous, pretermitted where it an honest be- nearly off, getting leg cut evi- due to by defendant as whether lief or not de- operation, surgical to details of dence as ceased about to attack him. liquids, solids or could eat whether incompetent. injury, was details оf his <&wkey;807(l) Argumentative law 29. Criminal — charge properly refused. is <&wkey;>!87 to relative 21. Homicide —Evidence argumentative properly charge is An re- general decedent size of defendant fused. com- physical petent codefendant held condition of to self-defense. <&wkey;815(1)Charge, pred- law 30. Criminal — evidence, properly icated refused. prosecution, in which In murder charge, self-defense, proof predicated evidence, A of relative size properly general physi- is refused. and deceased and Key-Numbered topic KEY-NUMBER, Digests all and Indexes other cases see same APPELLATE 20 ALABAMA REPORTS <&wkey;>670 <&wkey;755Charge invading put law 38.Criminal law Criminal —Courtnot In er- — province questions ror properly refused. un- appearing less that answer would be admis- invading prop- province sible and relevant. erly 'refused. put Court could not error for sus- objections taining questions, where relating *3 &wkey;>300(5)Charge 32. Homicide — clearly appear that answers would be ad- carry properly refused as arms held relevant, missible and and counsel did not misleading. expected elicited, showing state facts charge per- prosecution, materiality. murder that a son,' apprehend good at- reason to who. has may carry tack, pistol person, even on his Appeal Court, from Circuit Madison Coun- though concealed',if it he carries it he carries ty; Horton, Jr., Judge. James E. purposes, for properly defensive not offensive George Spelce Glepn misleading. Lawler were refused decree, convicted murder in the second charge they &wkey;>753(2) appeal. 33. Criminal law Affirmed. —General conflicting. properly refused, by Supreme where evidence Certiorafi denied in Court parte Spelce, 559, Ex 212 Ala. 103 So. 705. charge properly refused, where General ample conflicting to sustain following charge given for the charged. conviction of crime state: you gentlemen <@=»342 charge charges that, “I 34. Homicide —Refusal you if degree ground satisfied the evidence in this to murdler in held no first beyond a reasonable doubt that the de- complaint, where defendants convicted your duty guilty, fendants are it is to convict degree. second murder them, although you possible they it believe charges general Refusal as to murder guilty.” are not degree complaint, ground was no first where were convicted charges i These refused defendant: degree, operated degree. in second as an ac- person “(42) may fight quittal willingly of murder if he is bringing difficulty, free fault on the <&wkey;809Instruction, escape law relative 35. Criminal there is reasonable mode of — open increasing pro- danger, is to notice served deceased on defendant only necessary possession sold, premises prop- vided uses he such force as held against erly misleading. himself defend the assault made refused upon him, and, if the assault was felonious prosecution, difficulty In murder where imperil.his life, person, and such toas or his possession premises arose over sold de- harm, reasonably appear with serious at the time so defendant, instruction if ceased to de- justified then would be demanding served on defendant a notice ceased killing his assailant.” premises possession of it sold deceased “(100) charge you gentlemen jury, I acknowledgment by stituted deceased that Alabama, "person under the laws of where a possession premises was in defendant at of such good apprehend has a reason to an attack from properly notice, held mis- refused as another, justified carry- the hands of he is leading. person, though on his even ho Rehearing. carry On provided concealed, carry same for purposes.” defensive and not for offensive might (4) judge Courts 116 ex —Trial “(35%) you gentlemen I during mero motu term time amend bench Henry if find from the evidence that by supplying inadvertently notes omitted Spence served Glenn Lawler on the 5th word. day January, 1923, pos- demanding a notice judge motu, during Trial mero ex term premises upon session of the diffi- time, tunc, pro might, without motion to amend nunc culty occurred, charge you then I ^ supplying notes amend bench inad- acknowledgment constituted an vertently omitted show reasons for word to Henry Spence of the said that Glenn Lawler may mistrial, granting require clerk was in of said at the time write as truth. *4 testimony gone having trial, the to and jeоpardy plea former to of Demurrer presiding closed, of the then the state 9; 1901, Code propérly 1907, 7341; § Const. sustained. judge, Kyle, an Hon. entered order Osceola 60, State, 7 88 Ala. v. Hawes § on at that the trial docket his bench notes 11; State, 56 302; v. Andrews So. time, 6, figures in ‘March words and as follows: Mayfield’s 760; 1914B, 998, Ann. Cas. So. jurors im- the while of of mother one Testimony Dig. p. defend- offered paneled try defendants, trial nec- to the these going to before being ants as to their progress, of the case is in and it essary the discharge juror within was not fur- the scene of the said the' 446, cause, App. State, a ther consideration of this mistrial of Moulton v. rule ordered.’ 221, and Hill v. May 30, 1923, “That the on circuit court S. county being session, of this in E. Hon. James Horton, Jr., judges one of of the the circuit appellants FOSTER, tried were J. presiding, Kyle, judge Hon. the Osceola charging jointly on indictment circuit, presiding judge of this who is the of mur- degree, of in the first convicted circuit, came to and notice Huntsville without degree, sen- and each the der in second counsel, to the defendants or to the with- and of 14 penitentiary for a term tenсed out motion on the the the of state amend years. notes bench their nunc or memorandum pro tune, ex mero added to bench appellants separately motu the May 1923, the On quoted, notes as above after and the words severally plea jeopardy of filed a they former and defendants,’ ‘dying,’ ‘these the and wrote word previously, averring 4th, March up mistrial, the cause of the the or docketed case, put to trial the been prepare trial, of cause said the fol- order of mistrial with- the entered an court judgment lowing entry made and entered either of the defendants out the' consent of cause, upon said said of entered minutes the. against objections of of the de- each the judgment and fendants, cause, court as the said assigning upon the reason court, without is now the minutes of said and is words, mistrial, George de- in wit: and without or cause for ‘State of Alabama v. the May Spelce, Glenn Lawler. termining 1923. Comes severally neces- a manifest separately the defendant jury discharge sity without of the for the the *5 rights juror (Pow appellant 746); P. or a Am. Dec. Lawler the de- and & ceased, Spence, prisoner 577); ell (Brown v. Lawler land sold escape Spence. 482); appellant or the v. Tex. Lawler went premises Battle, early morning prisoner (State Ala. the of the 259); ex rel. and loading solicitor, wagon un some of his re- sudden illness of effects a place can move them he who from less proceed have assistants or associates the Lawler and a when controver- sy Watson, (U. Spence arose S. between with the case v. to the right possession 16,651); proper- ill to immediate Ben. 1 Bed. ness of No. the serious Cas. ty; juror’s (Hawes claiming right a v. Lawler wife that he had a juror’s longer desired, 302); son remain a and if he the death 24). Spence claiming (State Davis, E. im- 7 S. in himself to 31 W. Va. following possession. Case, pass- mediate Some Ned’s 7 Port. words place propositions ed and Lawler left the in his automo- were laid down: gun bile and went and some shells and a store and obtained a (1) not, capital cases, “That courts inquired telephone over discretionary authority discharge a a father-in-law, Spelce, ap- for his one of. given.” jury is, (2) after evidence “That a pellants, telephone but ipso commu- get facto, discharged the termination authority Spelce. nication with along back Lawler started of the court to it is at- which (3) possess prem- tached.” authority pressing necessity, “That a does the road in the direction of the discharge jury, in Spence a case of ises where he had left and overtook should and exercise' Spelce Dan- automobile in which and one appear.” (4) a ease made to whenever such along riding. proceeded iel were Both cars juror, “That illness of a or of the sudden and, upon the road in the same direction proceed, prisoner, so that the trial cannot point reaching opposite a the barn at which many necessity, cases of ascertained and Spence, Spelce Lawler and had left both only exist, when others particular which can ‍‌​​​‌​‌‌‌​​​‌‌​​​‌‌‌‌​​‌​‌‌‌​​​​​​​​‌‌‌​​‌​‌‌‌‌​‍defined be proceeded stopped Lawler their and cars arise,” cases etc. (Spelce front) towards the barn where Spence Spelce Spence was. knew asked if he necessity for [2] In the case at bar the doing, according what he to the discharging death arose from the Spelce Spence state’s evidence jurors. cursed It re mother one of the Spence slapped whereupon Spelce him, drew argument quires the effect show that Spence, a ing receiving fired kill- juror three shots at upon the mind present him. The state’s witnesses testi- mother the death of his information of Spence nothing in fied that his hand when incapable that calm him to render slapped Spelce Spelce, fired one reasoning consideration deliberate is picked brush; Spence up shot the other two cession and a before investigation im of this cases due quick were fired in suc- unquestion shots magnitude. portance It was away ; Spence duty ably juror of the court Spelce the time the last two shots under circumstances. and, fired, Spence went in the setting were when jeopardy, [3, pleа of former 4] door, got gun his barn automobile Lawler his shot notes, copy judge’s a affirma out finding and fired a in the direction necessity shot tively showed striking him, Spence, the load necessary but to dis court that lodging in barn. juror for that reason and that defendants tended to The evidence entered. bench notes mistrial was .encd n showthat the time of the the 1st of June or 1st jured rial. to band pounded legal, irrelevant, chase. the Spence: that the'scene of the did Lawler?” was d'eed evidence, explain house and occurred, possession or authorizing offered night house from deed version ceased, ceased the way road, car, erence Spelce plete moving diately prior difficulty occurred, and of the Spence ler ler with automobile (Spelce) fense that Lawler had Spelce, and Lawler were “What was “Glenn The evidence was relevant as [7] The defendants [5] [6] The defendant possession. went ; controversy following question by defendant’s your house, premises went to the car, Lawler violence from back from Spеlce, did showing ; Error, before by and all grounds assigned same to to Daniel, killed; by first addressed the told husband Aaa.App. asked deceased which was about not show the correct date of a discussion of the and Lauder Lawler was still in the and there was no Glenn about so deceased was evidence. answer was: scantling paper authorizing difficulty picked the removal of such presence left move remove said house. to at that the at his him where premises the date state his clearly and Lawler deceased was killed three, Spelce any, objection that the movements that at that difficulty,where, premises went to that Byland he and his agreement Spelce’s he would incompetent, and immate- The offer was to —27 buy attacked out of the barn and house?” up effects. difficulty father-in-law’s, in the court’s to Louise and at sustaining immediately and to throw interposed objection to could time of the killing deceased, Kibble this land following time were that it advancing Ryland, met to the conversation where July, the state house and difficulty occtírred, сontracted to a mile from where give between occasion, time met, not have purchase *6 presented family spent morning began right of about the he claim Lawler parties Spence, Daniel in his etc.” deceased, he deceased possession by injury. question pro long morning objection by Lawler Lawler was to sold removal and on in another house was journey, tending appellant’s The moving light upon overruling Daniel to your with that Law- on Law- SPELCE STATE been left his went self-de- out the threat- “When George at the Louise to de- to de- Spelce imme- Glenn paper right com- left; fired pur hus- give ref- sell the 256, the Daniel in il- to Ala.AppJ) a declarations, with to as of the res larations larations about show that to cide. larations, going, falls within the rule that were lowing homicide defendant which allows fore appellants as of the defendants at the ment with him to 11 So. he was. The conversation about he had not what was not of the act of ence were made. Evidence that no declarations It him.” Nor was it sence it was irrelevant to Supreme fеndants on their direct examination to and the witness Daniel on the road ant to show that in such conversation Lawler cide. The evidence tradiction trouble anything asked ants state to as on “Nothing journey, [10] It is [8, Spelce him.” was therefore to when explanatory explain 48 So. to the between defendants difficulty, they been established 87 So. 328. But we know morning; Spence, 9] payment to show made does not are Spelce The “nothing met on 255; Ingram not with Spence, or evidence of It was not property defendants’ as to the dates of of a knew Court. Maddox himto declarations. conduct at the were made admissible as 689; offered that the evidence offered to show place, nothing was said about 976; as to the the first rule proposed found or insisted made if he had seen Houston going gestee setting party proof due said at any that he had going made, by Harris v. was said about give —the going Crenshaw v. that not issue in the case. payments road, going to show that—(cid:127) help him object show that when February 1, competent competent to the evidence for the state. payment having any of the act of offered was to be made of the ab had a conversation fall within to permissible there or by character to his party setting admissible object contemporaneous contemporaneous presence deed in evidence set him party setting show that the decisions of our learned counsel Lawler, Spelce, Spelce place place having place time of the meet thp contrary out contemporaneous made wanted move; and showed the of the res to Louise was to made between no State, for the defend for the defend fatal purpose there or doing place on a instant trouble with and conduct Hughes declarations and Lawler not in any for purpose of no going, difliculty, out on a or where any and that evidence to know place just journey rule tending Hughes engage the de- of the trouble out on Spence Spelce gestse homi homi- doing pres App. rule dec dec- dec has go be al- REPORTS APPELLATE ALABAMA they show that trouble with permissible such declarations ants, Daniel, ears to the deceased was tions about look for that and road Lawler house for versation, missible. going culty “about ant to *7 any promise down Lawler, show tion between Spelce’s rendered that tain tified time had to his father-in-law reference Howard- ants derstanding show Spence. show gotten cut, of titled in It [11] It was It [12] It was It was [13] It [14] The [15] It was [16] Defendants show show an uncommunicated his own and in the house?” was conclusion was it trip not tell met Lawler any impediment he, house; had full benefit of was not going on direct examination with later to as It was not show defendant received legal testimony off any difficulty. statement going “Was he house his trouble with Lawler that there was no conversa- Spence’s were to his Spence’s Lawler that he “had did not not in such condition , show that Lawler that question by reference he had turned place that he was to move the house.” to wife, the defendant or but the deceased.” negro killed Spelce Spelce not him and going competent all competent trouble crutchеs. competent competent competent show the Lawler admissible, make road and size and objectionable the defendant Lawler tes (Spelce) arranging competent make competent to the effect there and asked competent house evidence. having and all the place down to time these he wanted (Spelce) or about witness. Spence. child or that he Spelce, George any promise, Spelce did defendant morning. made. George motive is not for the defendants difficulty to have for defendants to proceeded for defendants to physical negative they testimony statement at the benefit of all occurred between of the purpose. hut any leg, Lawler that he had stayed the letter over testimony. property,” The fact “with the un- difficulty Any as defendant Spence’s met on the having any sation trouble. Spelce it was not (cid:127) had it been and defend the defend he purpose never sur calling for in which to Glenn condition Evidence down homicide in a cer that no declara- Spence’s to move was en- he was defend threat, of Dr. There make if he diffi con just ad he go \ -tending to threatened house to have that. that showed was in physicians been tion show statement with reference to show that leg Am. ing 15, something off; it was of the fatal fendants, ness standing cannot enable more so was immaterial and called for to show a cated motive. weakness; general physical wound or walked whether uids, before or whether affected at was show the details of the Gunter v. our Clellan, Spelce. going erful man and cuse (cid:127) “There It was not It [17] In Mann v. [19] It was not’ [20] Dr. [18] [21] There pistol Spence’s, carrying nearly the last few parties had Supreme Court, was not delicate, St. time for three or the details not by Spelce to show by Spelce was, therefore, between There defendant Glenn make testify competent poorly, Spelce, by Spelce C.. Rep. for some Spelce lately This was testified between was abundant physically competent injury; 15th Howard, who treated J., Spelce, cut that his show by difficulty. etc. to move he he had been оn crutches at being says: competent competent he to an any him for the into an off; could that he “You naturally some other question propounded affected condition aof did was a his four weak the relative conditions Dickson that1he to show the relative you and years; time; that he was one of the competent nothing January, “Was there difficulty “that evidence and Lawler justified leg a a witness time of neither occasion for the defendant that house?” Witness elicited speaking paid understanding. eat solids not err there was at the surgical operation, or the de'ceased years; pertinent past inquiry had evidence was not that Mann made physically, George Spelce fact frail injury for for defendants his condition was had been was a frail deed that on of the defendant going Spence’s Glenn reason of nearly few time and parties of the defendants for defendant no weak by that he knew a he as to through condition such threats for the de uneommuni about self-defense, he strong, any or in the case getting years.” inquiry Sо. promise no conver- questioned. weak and and man, had been Spence. homicide. was weak received, only order been cut Evidence carrying Spence,” January physical man. nor under how it going ques pow- dur wit just had, size Mc- liq his ex- or as to to It v. STATE Ala.App.) pass corner of not robust crossroads. The record came that Mann was does strenuous," a for instance that he seden- not as led show that he rode around the horseback tary life; much outdoor he not taken had making inquired corner the test about. was, exercise, such as and that his work not It was not shown that he was the same muscles; lung he to harden his trou- position Wall, as the state’s witness who ble,” etc. riding he was horseback difficulty. around the corner and saw the In the ease the evidence showed instant aught appears For weak, evidence of small a was Orowson, may witness ing pounds weighing, have been walk- man, and 125 between 100 riding man, wagon, strong automobile a the deceased was a may not have had the view from pounds. same weighing It ISO 165 and between open horseback whiсh was to the witness inquiry pursue fur- 'immaterial was Nothing Wall. was asked about the size of ther and show the details the man Wall or size horse from physical injuries. Spelce’s which a man could not Wall testified see. propounded the [22-25] wagon was and'the between following question witness to defendant’s engaged difficulty men Orowson: A. J. wagon did not to look have over the to see riding man not a “I whether or will ask wag- them. was no There evidence that any- could see horseback around the corner place the same at the time the wagon; thing if of that on the side witness Orowson made the examination of so, much how could he see?” surroundings difficulty as when the oc- 10 o’clock a. The homicide occurred curred. There was' no evidence that January 15, in which the The trial wagon m. witness evening Orowson saw on the May testifying commenced difficulty place the same testimony was as 1923. Witness Crowson’s wagon was the at the time witness Wall follows: rode around the corner at the ' difficulty. posi- difficulty, evening conditions I am “The place tive, up time of diffi- where this I at the time of went standing wagon culty occurred. I visit of saw witness Orowson a few months later ' my there recollection To the best there. shown burden similar. The glass, a blacksmith a a dresser without party offering the’ big sloping up large forge, thing at the bot- similarity show essential conditions. wagon. barrels, tom, baskets on the I similarity sufficient, substantial and it is day yestefday out the ordinarily for the court to determine wheth- place wagon saw sufficiently er the conditions are similar to things the same much stuff on the on it. It warrant admission of the evidence. wagon day I saw In Ala. Great Southern R. difficulty. R. Co. v. Bur wagon, When I saw this gess, pages Ala. on standing 595 and door west the front shed barn, Head, speaking court, about 10 feet from the barn and Justice for the pointing says: toward road. I was there , pictures photographer took some of the “It became how on the trial far wagon position. with the saw in that I the saw the injury (which from the identi- boys standing wagon top side of east by testimony being fied of near the end picture taken, before the my trestle) certain these children could be boy’s wagon myself. head across recognized track, seen on George small man a little than bit taller children, from the direction train came. possibly Spelce, 2 inches. Don’t know I19W plaintiff’s *8 permitted testify father was day young yes- tall the man was there experiment by to about month made him and others terday, possibly feet,, good tall man. I don’t 6 injury. They placed after the I the know. down at corner of the cross- boy (plaintiff) the little was and one witness’ little of and roads looked over the direction of the larger girls, than a size the 'one height barn, men looked two about the Here boy killed, trestle and the left a on 17 Spence.” and the ob- years them, old with went down the and track jected asked, and the defendants stated they yards, point and from 700 could they expected the answer be “that he objects They see toward on trestle. then walked tiptop not see but the of could yards, and them and 200 stopped, “The witness heads.” further trestle; children on the two and saw there, he was down while could not see they witness testified that were could tell that doing men what the the were on the east side of yards. children distance of 500 wagon.” persons who with the other were witness tes- substantially the same. This testi- tified elapsed four months had More than questions brought mony, out, it and the date of the homicide to the time the objected grounds they were were made witness Orowson of examination irrelevant, experiment and that inquired test about. out of made topographical conditions*appear to have present, and because the conditions were not substantially been the same at this time same as shown be the on the occasion of (May) (Jan- as when the Exceptions occurred duly the accident. were reserved uary). objections. overruling Witness testified that he was at the to the of these relevant were 420- dence, children. other did not involve gineer, issues recovery by in time to avert peril of the to avoid the evidence, such if there was fully pose supposed practical to make mere the evidence, to, after actual light upon The conditions are too variant. time to periment, children, could have been discovered whether are nish, leaving differences; but, upon ences place, jury, touching ered the close, and to make due allowances for such discovery, if that care to pounded experimental ical ty, observations, some months after the difficul- time of the tified he saw the 138 under which the state’s witness Wall tes- the witness Crowson was benefit timony sustained corner in I-Ial “We “The Where the conditions under [26] could the exercise peril, part, whom experiment injured, by Bone, of the evidence and did to understand the or aid negligence in the determination leaving them to Moreover, 77 Ala. 33. The think, engineer opinion writer plaintiff, of this line of not shown Crowson, of two witnesses stop prevent which reference will tending safely method plaintiff’s peril, the trial to show It conditions, the evidence of which who were there at the same time by surrounding show how 35 So. 129. discovery otherwise, failing difficulty, witness is in'connection such, injury the fact that issue.” peril could injury, the train before observations. Sherrill v. cause; engineer him ascertained furnishing, negligence, inquiry true actual was, jury occurred, of except plaintiff, under of due to show were an issue who was not might to use the defendants court would have been whatever disposed to discover tijat *9 fight, properly to be the same as those should be competent, shedding some and could Crowson to consider under injury, injury, but, plaintiff’s knowledge made his far whether draw due legal evidence will not fur- evidence in the tes exercised reasonable have as the case or even before such properly refused. mere 20 the court the if there knowledge basis they in not J. give which the consideration, safe negligent rode to think there, be peril. character, which after he discov- reasonable be ALABAMA APPELLATE injury just conditions seen been scope means 'at E. relating put reaching question pro- present negligence, on them, or children, who regarded give peril, aof experimental or not made, guide such Tipton suffer it is to around the aid engineer discovering conclusions by have been topograph- before the discovered Tesney other the cause. legitimate and each had full see recovery right may properly children, objected peculiar failure, it was to his differ- injury hand, these them them care, such part pur- as a jury any- fense evi- dis- and en- the the ex- we be Charge v. around faulty, been 18, 92, thing wagon App. 442, App. legitimate administration. 191 Ala. es 5 Ala. error. fusal of Supreme court, 234; So. 639; no other honest as to attack him. McKenzie v. 155; Acts take life covered self-defense. evidence. A ince jury, and was So. 179 some from fault would a the self-defense. Charges 2, [27] That [28] Refused Charge Charge [30] Charge Charge [29] Charges [32] [31] Charge Charge good to whether retreat, 16 95 So. 379; Ala. evidence, fatal 193, properly refused. 593, 332, repeatedly White other Smith v. those So. Walters and was Charge the oral Charge Charge Charge Charge belief on the Brand and were were that reason REPORTS by given charge 28. requests 21, concealed 98 Hill Court 72 97 71 So. 120 was reason, 51 99; 112 omits freedom 46 is covered is60 207; difficulty. 97 omits sphere . of Ala. Edwards justify one of 18% its and‘duty person v. So. men on the other side corner may 68 So. 801; So. 316. So. 3, is covered State, doing is invasive or not the deceased is 14 is covered 109 is v. v. 59 is not State, 100 is refusal was not error. 119 is not State, properly refused. 6, 216; Rosenblum properly covered charge held Johnson v. 234; 722; faulty. State, State, Cheney by n acting for that covered properly apprehend 7, 9, faulty. the Tyler the essential elements at 1915, p. at the time 19 ‍‌​​​‌​‌‌‌​​​‌‌​​​‌‌‌‌​​‌​‌‌‌​​​​​​​​‌‌‌​​‌​‌‌‌‌​‍57; the while he argumentative Case, single White by this to' 19% another misleading habitation 92 “supposition” Dawson defendant in v. Ala. horseback. Richardson 210 13, predicated by given charge retreat, Smith elements Ala. oral State, refused. It omits formed in self-defense It omits the invade the refused. 29, v. out the App. given charge given charge 41. predicated upon v. Ala. by App. 332, State, province from fault the defendants an charges time and pretermits an State, Ala. charge State, faulty, court, v. v. and App. given 19 attack from elements and 9 So. was about State, State, Ala. design v. 102 evidence. 74 and was and our carrying place judicial freedom has coming 19 19 Ala. It has self-de; faulty. 97 97 charg 97 So. given, if for State, were prov- App. 408; Ala. duty Ala. 196 and: 197 Re So. So. no 69 to, . hereby declared a mistrial of said cause.” and on March yond refused. refused. dence. second [33] [34] murder murder ample trial Charges Charges reasonable degree, There There evidence in second in first defendants 12, 1923, 91 and if again was awas and believed doubt. to convict degree, a degree, set 92, general conflict charges conflict cannot for general jury failing March were were in complain in the murder charge charge as they evidence, jury.be properly properly 9, 1923, evi as to in defendants of may require Ala.App.) v. STATE down culty?’ an nunc supplying term in accordance ardy agree, sent another “The defendant [36] objection to which demurrer was of the defendants. time, pro tunc, to Mr. £t To trial was mistrial was trial an may, this filed their which was sustained inadvertently the clerk to write the Spence’s judge question amend then had and at and there ex mero ordered plea the state a motion On *10 reference omitted having bench notes sustained. May 22, with motu, duly excepted former by interposed word, the court. any time- to minutes during amend jeop- diffi- APPELLATE REPORTS ALABAMA excepted ruling this ant then and to there court to the action of the they expеcted court, stating objection. an- to the then stated The defendant promises by they swer be such statement expected to made.” that no the wit- to court show question did were that he in answer to ness any Law- not hear conversation between Glenn purpose aught Eor court knew Spence. George Spelce going to ler about testimony questions any to to ,and having elicit trouble. following going nothing was then asked the witness “The effe'ct that said question by difficulty. Law- ‘DidMr. Glenn the defendant: Spence’s down have to house to Spelce that he ler tell Mr. occasion many to times stated defendant’s counsel Spence’s go To house?’ him down to wanted to purpose cer- the court that such was the objected question and the court the state de- questions, tain it is clear duly objection. sustained the way, insisting proper cer- in a fendant was tainly, duly excepted then then there testimony getting such they expected there witness stated that jury. which would If to answer the affirmative. gestse question beeii admissible as res “The then asked this witness was Spelcе by George going know. defendant: ‘Did Mr. entitled to any any promises make that then or statement able to ascertain there far we are So Spence’s going for house to anywhere intimation testimony the record that any difficulty question the with him?’ To this brought at- offered to the interposed objection, sustained state the there that the court court. tention of the objection, then and duly excepted. clearly appears defendant stated “Unless it the answer they expected by prove in to the admissible and rele- to the witness George be Spelce, vant, expected must counsel state the answer to at that Mr. showing materiality, about, any elicited, inquired be- make the time put any promise, threat, fect the ef- fore the court can be error sus- to statement objection question.” Spence’s taining house for that he was Dig. 437, any difficulty par. p. purpose or trou- Michie’s 294. Spence.” ble with rehearing application is overruled. Appellant’s also call attention counsel questions propounded Law- certain to Glenn 438) (104 'аppears pages rec- ler as 53 and 54 of 483.) Div. v. STATE. WIDEMAN (cid:127) ord as follows: Sept. 2, Appeals (Court 1924. of Alabama. Oct, Rehearing, Re following Further “The witness was then the you On asked hearing 16, 1924.). question by Spelce Denied Dec. his counsel: ‘Did tell Mr. morning you wanted him to 238(1), <&wkey;206(4), law Constitutional go you any Spence’s pur- fop with down qualifica- requiring (I) certificate pose?’ objected question, —Statute The state to this practice medicine, unconstitu- held not tion objection, the court sustained and the de- violating amendment. tional as fourteenth stating excepted, fendant then and there as amended Acts Code they expected § the court that the answer to be prohibiting p. 661, with- they treatment disease expected same as the answer of the qualification obtaining a certificate out state question. Daniel witness examiners, held not to medical board of question: witness “The then asked this deny equal protection of law or violate feder- ‘Was there conversation that time be- Fourteen. Const. Amend. al you George Spelce tween to difficulty?’ reference Spence’s having any down Mr. — surgeons <&wkey;6(9) Physicians Indict- objected ques- The state to this practicing medicine without cer- ment objection tion, court, was sustained averring de- sufficient without held used tificate fendant excepted, and the defendant then and there system of treatment. they expected stating chiropractor prosecution practic- answer of be that there was qualifica- a certificate of medicine without no such conversation. averring tion, held sufficient without indictment following witness was then asked the “The treated human diseases that defendant “system question Spelce you his counsel: ‘Did tell Mr. treatment”; sufficiént to occasion that wanted beings diseases human treated aver Spence’s go down house?’ The state obtaining license state board objection, interposed an which was sustained medical examiners. The defendant the court. then surgeons <&wkey;2Statute, stating they expected Physicians excepted, re- the wit- — practice qualification quiring certificate ness answer the affirmative. medicine, held valid. question: then asked this “The witness was any promise George ‘Did Mr. make § amended Acts Code requiring persons, treating p. 661, statement time with refer- hu- make all Spence’s profession, ence house as a and for a live- trou- man diseases Spence?’ lihood, a certificate from The state state board ble or in- obtain police examiners, terposed regula- question, to this is a valid which of medical court, was sustained tion. defend- Digests

<gc»For Key-Numbered see same in all topic other oases Indexes KEY-NUMBER in accordance with notes minutes of said notice.” speak amended, so toas make record Thompson, J. Birmingham, F. Douglass Taylor Pride, and Lanier & all of <&wkey;l167(5)—Any error Criminal Huntsville, law appellants. ruling plea on defendant’s of former court’s plea jeopardy Demurrer of former jeopardy held harmless. 1907, should have been overruled. Code § prosecution, In murder error court’s 7314; State, 11, Andrews v. 174 Ala. So. 56 plea ruling before minute prosecution jeopardy,' on defendant’s former 760; 998, 1914B, Reynolds State, Ann. Cas. v. entry showing mistrial former App. 1016; 24, Baysingеr 1 Ala. 55 So. v. actually by clerk, been written State, Ala. 77 60. Defendants should since, harmless, granted trial, another held permitted been with to show their entry confronted be reasons for minute judge’s ordering showing reference to where mistrial. KEy-NUMBER Digests topic eases see Key-Numbered in all <&wkey;>For and Indexes v. STATE 415 Ala.App.) State, necessary cause, 159 Maddox v. occurred. jurors trying cause; State, Tesney Ala. 689; 58, 77 and the de- said v. Ala. 33; 48 So. 147, 69 Ingram State, fendants moved court App. Ala. the clerk 13 v. 81, required n So. State, up 976; to write the minutes of Campbell v. State, 17; Rep. the bench notes accordance with Harris 91 Am. So. St. judge 255; mov- dated March and also Crenshaw 11 So. 96 Ala. con- ed to strike from bench notes and So. “dying.” motions minutes word was material. of defendant dition agreed following 911; submitted on the Cyc. Dunn v. 632, statement of 147; facts: Gunter v. Rep. St. Am. “Whereupon submitted motions were upon the for the consideration of the Atty. Gen., Davis, Lamar Harwell G. May following agreed On statement of facts: Gen., Atty. Field, State. Asst. March, 1923, 30, 1923: That 6th of

Notes

move court strike from the notes justice, verdict, giving the ends of or 'entry appears and minute dock- trial defeated, order the be would court, motion, et of this set out juror discharge mistrial the and the duly being same to and submitted was as follows: court, sidered it is therefore and motion be and ordered adjudged by the jurors impaneled court that said mother “The of one of hereby the same is defendants, overruled.’ try while the trial these necessary progress, it case was plea discharge jeopardy Demurrer juror case, of former from the further con- said a mistrial ordered.” was sustained sideration the motions the defend- ants above referred were overruled court, exception copy reserved this ac- The above was a the bench notes tion of the court. judge made mistrial trial order upon pro- plea jeop- Section the Constitution of 1901 which the of former put jeop- no one ardy interposed shall vides be twice Demurrer was' based. ardy for plea grounds offense and also that— to ly affirmative- it try- appeared plea judge by said may, by law, “Courts for reasons fixed dis- ing said cause a mistrial declared becаuse charge juries case, from the consideration necessary discharge jurors gain of the one advantage by no one shall cause, impaneled try discharge jury.” said and that of the of the reason necessity of such therefor was entered fact 9, supra, delegates Legis- upon judge, Section the bench notes of said said court authority court, provide upon lature a mistrial the minutes appears plea reason to be law. Andrews fixed said opinion judge trying Ann. Cas. the court APPELLATE REPORTS 20 ALABAMA 1914B, judgment By sufficient section Code to show what Legislature discharge duty provided of intended for the and it was of the juries upon consent, parties, clerk enter the minutes of without of the judgment judge opinion “when in the intended judge necessity bench notes. The the dis- trial amending there is a manifest did not exceed authority justice charge, ex mero motu or when the ends of during by supply- the bench notes term time (cid:127)otherwise section be defeated.” And said ing by entry jury provides that, a clerical dis- omission. The minute also charged where “the during complied verdict, clerk mistrial the term shаll without court, requirements the sufficient. to of the statute be entered minutes of the assigning mis- the reason cause for the defendants cannot be said placed ; person gain jeopardy ad- trial been and no shall within the meaning vantage by discharge provision, su- reason such constitutional pra. jury.” The court did err in something plea overruling the demurrer LI] Unless has occurred or in sworn, legal motions con defendants as to instructions templation writing up the clerk in necessitates the withdrawal the minutes. jury, testimony the ease from the state’s directed to show- expira homicide verdict occurredaboutlO o’clock acquits morning in Lawler, tion term defendant. which Glehn necessity presenting appellants, are the sick had sold to the judge (Nugent controversy deceased. ness 4 Stew. arose

the fest trying adjudged by the court eration of trial of plication to the satisfaction er of convicted refused. appellant George Spelce lated to termit based of firmed. in the judgment ease is now here retreat, been inserted there was we of thе state defendants, dence and ample “This" March In the Affirmed. After Charge Charge Unnumbered Charges Charge

[35] discharge try letter court’s opinion opinion necessity properly fault C. S. “to appellants, record. predicated Charge judgment motion freedom from these this 69S, in the two elements the affirmance mislead original opinion Z, wit,” 121 is not 95 was of conviction refusal of cause, Yann, of the court was free is verdict column said on the tenth defendants, murder rehearing, the court bringing overruled. conflict and 35 are is 35% faulty, charge, properly On cause, matters hereinabove writing upon the evidence. one of the faulty. juror dismissed his was justify Kehearing. following: degree. predicated is therefore was jury, general new fault in of self-defense. line on progress, properly it from further refused. for given circuit Glenn had died while the morning; faulty, a conviction. there There line on application being It ‍‌​​​‌​‌‌‌​​​‌‌​​​‌‌‌‌​​‌​‌‌‌​​​​​​​​‌‌‌​​‌​‌‌‌‌​‍faulty; therefore and was this court of error. trial, 37], ante, p. 415, there be it no jurors pending the rehearing. for convenience omits charge second there is mаni- difficulty. at the evidence upon appeal. The Lawler, should made known acquitted court ordered and refused page was the moth- impaneled necessary they properly freedom decided, it duty to for request reason, consid- degree 3 [see calcu being error pre- and of former evi- the question: ap- af- ' 'juror Mr. Glenn Lawler place with him to found versation him or ant to tion, ther, Spelce Mr. Lawler?’ Spence, expected the action of the court jection nesses material. fendant’s firmatively amended, had reference requirements on the attention spread upon cannot avail was technical of one of the ord sustaining dering a above their brief sist “The witness “The- “The defendant

[37] [38] Learned this him. trial will show that truth. actually that Lawler down If set if he had 'question eliciting witness morning or of following mistrial. If ‘Did witness record. We find the it that. that he had made ordering a mistrial. so jeopardy, out, confronted and wanted demurrer they to the deceased’s shows careful prove by help stated should statements made the minutes his reasons good been written as to error jurors nothing Whereupon application court which (Daniel) met, with with questions propounded of the fatal counsel, defendant, him Kib then seen Houston question:' having have trouble reason for there or questions then asked or where he was. The death of the affirmative examination be conceded make before the minute such conversation to the defendant’s sustained the during Daniel move; given there was a conversa- .by ground that George Spelce, complies open law that was said in the con- any to know was then asked this no -with for ruling the minute the state the record there conversation with doing ‘Mr. another place, were asked that he injury discharging the record him, appellant, rehearing, following: time between trouble answer pages with Hughes of the court Daniel, if he knew of the rec progress of excepted engagement the defend- anything 'that clerk, it notes objection. and, resulted trial he objected the ob- mother all for or answer direct speak about judge asked entry entry there they plea wit fur- this im- de in af