The Montgomery advertiser., 1901-08-24

Is competent for the State to prove by the clerk of the court wherein the for mer conviction was had, or his deputy, that the defendant in the present suit was the same person who had been formerly tried and convicted in said court.
 6. Charge as to reasonable doubt - A charge which instructs the jury that "a reasonable doubt is a doubt for which a reason can be given. and if under the testimony in this case the jury can give a reason for acqutting the defendant" etc., he must be ac- quilted. is misleading and confusing and its refusal is not error.
 Affirmed.
 Opinion by Tyson, J.
 MITCHELL. V. THE STATE. Indictment for murder-Appeal from the Circuit Court of Marshall. 1. Jury law; effect of embodying in the Code provisions of the statute re- lating to the drawing of juries-The act approved February 2S, 1887 (Acts of 1SS6-S7, p. 15D ito more effectually secure competent and well qualified jurors in the seevral counties of this State," is a general and not local or special law, notwithstanding the ex- | clusion of some counties from it's opera tion: and its several provisions being embodied in the Code of 1896, Code Sec. 4976 ct seq.). were re-enacted by the adoption of said Code, and as found therein said provisions are applicable to the counties which were originally excluded from operation of said act. ?. Organization of jury; not neces- sary that names of persons who were summoned as talesmen should appear on the list of jurors served on the de-
 fendant.-Where the order for the drawing of special venire from which
 the jury to try a capital case Is to be impannelled is made a week previous
 to the one in which the trial is to be had ,the fact that the names of some of the jurors who served on the regular juries for the week in which the trial
 was had, did not appear on the list of jurors served on the defendant or his counsel, constitutes no ground for quashing the special venire, when the evidence shows affirmatively that such persons were not summoned under the venire facias issued for the regular juries for such week, but were tales men. and therefore, did not belong to such special venire.
 3. Charge of court to jury; presump- ton of malice through use of deadly weapon.-In cases of homicide, the use of deadly weapon raises the presump- tion of malice unless such presumption Is repelled by the evidence which proves the killing; and. therefore, on trial under an indictment for murder. where the evidence shows that the killing was done with shot gun, an instruction in the oral charge of the court is free from error which instructs the jury that "In a case of homicide arising from the intentional use of a deadly weapon. the law presumes malice from the use of such weapon unless the evidence in the case rebuts such presumption; and if such pre- sumption is not rebutted by the evil dence in the case then you are au-
 thorized to find that the killing was with malice."
 A. Same: court not required to repeat instructions-The court is not required
 to repeat instructions which have been. in substance, already given to the jury In other written charges; and , there fore, the court can not be put in error for refusing to give at the request of the defendant, charges which were substantially the same as instructions which had been already given at the defendants request.
 3. Same; when charge as to suspi- cious circumstances properly refused On a trial under an indictment for murder. where the proof connecting the defendant with the killing is not, in any
 way. circumstantial. but is direct
 positive and without dispute, . charge is properly refused which instructs the jury that mere suspicious circum- stances are. in themselves, sufficient to justify conviction for crime" 6. Same; reasonable doubt-A charge is properly refused at the request of the defendant which instructs the jury | that they must have not only justify | ing reasons for a conclusion of guilt, not only must they be able to say
 upon reason that the defendant is guilty, but this conclusion must im- press itself upon the minds of the jury | with such convincing clearness and force that they are unable to find in the whole evidence any reason for a contrary conclusion"
 '. Same; properly refused when argumentative and giving undue promi- hence to parts of testimony.-Charge which are argumentatiVe and give prominence to particular parts of the testimony favorable to the defendant, and which ignore evidence having a tendency to show the guilt of the de- IeHudHl. are pTopeTly TeluSeu.
 8. Same; charge ss to threats and bad character of decentralization threats by a deceased nor his bad character would justify his killing by the defendant. If the latter was the aggreesor in a difficulty; and. therefore. on trial under an indictment for mur- der. charges which instruct the jury that the defendant was justified in taking prompter and more vigorous measures of self defense when attacked by deceased. if the evidence satisfies the jury that the deceased had made threats against the defendant and that he was a dangerous man. without hypothecating that the defendant was without fault in commencing the difficulty. are erroneous and properly refused
 g. Same: what inference to he drawn from fight-On ! trial under an in- dictment for murder. where there is evidence to show that after the homi- eide the defendant fled to another