The Montgomery advertiser., 1901-11-21

have aneCIed tnc Juu8hShs ~Ao'-> the appeal was taken.
 Affirmed.
 Opinion by Tyson. J.
 VAUGHAN ct als. V. THE STATE. Indictment for murder-Appeal from Bar
 bour Circuit Court.
 1. Homicide; evidence; question or Isct for iurv.-Iynder an indictment for mur- der. where the evidence for the state tends to show that deceased was Nneo in Barbour County. Alabama, and the body thrown in the Chattahoocnee niver, and that death was produced by choking and examining a handkerchief in the mouth, and the testimony shows that s body was found in said river several months afterwards with hanokeIcnlel stuffed in the throat, and the witness who discovered the body identihed handkerchief as the one found Tn the throat of such body, and another witness testified that such handkerchief WAS similar to some she had washed Tor one of the defendants prior to the aleeeo homicide. the identity of the hanaker- chief Is a question Of fact TOT the 1e'er- imitation of the jury.
 Same. same: declaration in presence of defendant not denied.-In such case it is competent for the State to snow that on the night the homicide is alleged to have been committed. witness TOT the State heard another person say in | the presence and hearing of one or the defendants, "You have been the cause of one mans death, and you think you | will be the cause of mine. but am gsins | to get away" when such defendant does | not deny the statement, and 1t is ad- l mitted as against such defendant only. 8. Same; evidence of telephone mes | sage where the voice is not fdentiheo- | In such case, the testimony Of witness | for the defense, that on the night or the | alleged homicide he received a telephone message purporting to come rom tne deceased when the witness did not know | or recognize the voice. is hearsay and
 inadmissible. | 4 Same; illegal evidence; right to ex- clude-The court of Its own motion may. 1 at any stage of the trial. exclude il'esai
 evidence. E. Same; same; clerical misprision.- | Where the bill of exceptions Is m the form of a stenographic report Of the
 testimony. and it shows that certain | hearsay testimony of a witness for the defense was excluded on motion Of the State, such testimony having been drawn
 out after the appearance Of the heaoins | Gross but such heading
 also appears further on in the testimony
 of said witness, and the excluded tesu-
 mony would have been beneficial to the l defenSe first appearance of the words "Cross-
 Examination" is a clerical error correct
 ing itself and it will be presumed that
 the excluded testimony was drawn out
 by the defense rather than the state
 s Same: same.-Where the State of-
 fers circumstantial evidence under an tn-
 dictment for murder, tending to snow
 that deceased met his death by choking | at the hands of the defendants. evidence Af hn
 strains or spots on the floor were lot
 blood stains is irrelevant and properly | excluded.
 I. Same: flight; voluntary surrender | Where the State does not seek to show flight on the part of the defendants, 1t
 is incompetent for the defense to show
 that defendants voluntarily surrendered | or failed to flee when the opportunity
 was offered.
 g.. Same; corpus delicti; Venue.-Under | an indictment for murder, where the
 State relies upon circumstantial evidence tending to show that deceased was kill
 ed in the county where the indictment
 was found, and his body thrown in 3
 river in which it was discovered, abou,
 156 miles below the scene Of the alleged
 crime some forty-seven days afterwards
 with marks and bruises corresponding
 with the testimony of the States wit | nesses as to the method of death, the l value of the crime and the corpus delicti | are questions of fact for the determina-
 ton of the jury. and the refusal Of the l affirmative charge upon these points is | free from error.
 g. Same; charge singling out testimony It Is proper to refuse charge which
 singles out or gives prominence to the testimony of witness.
 To- Same; misleading charge.-It is proper to refuse a charge which in
 structs the jury to acquit. if the de-
 ceased was thrown into river belonging
 to another State. since the murder may
 have been committed before such dis
 position of the body. and the charge t'
 consequently misleading.
 III. Same; same.-Charges referring tc | links and chains in the testimony ar'
 misleading and confusing, and conse uuently properly refused.
 Affirmed.