The Montgomery advertiser., 1901-09-19

4 Ea
 HALL Y. THE tIATE.
 Indictment for murder-Appsa from the
 Circuit Court of Cherokee.
 |. Arraignment of defendant; not im- Z proper to set criminal case for trial dur tnk civil week-The action Of the trial oicted for murder during civil week or the term of court, and then setting his trial for day of the succeeding civil week of the term and proceeding to his trial on the day fixed, is not errone- ous and subject to objection.
 2. Organization of jury in capital case; no objection that the initials of jurors are yxfsed-The fact that in the drawing of names for the trial of capital case and the copies thereof served on the defend ant. the initials of the Christian names of the jurors were written ou the slips and lists prepared constitutes no ground for auashing the venire
 & Same; when same person Is drawn on the venire of special jurors and serv- ing on the regular jury. no ground for quashing the venire-In the organization of jury for the trial of capital case when 1t appears that there was drawn as a special juror and put on the venire Of special jurors served on the defendant,t the < name of a person who was serving on the regular jury for the week when the trial was to be had, although the Chris tian name was designated in one instance by the initials and in the other by the Christian name in full 1t Is error for the court to overrule the motion to quash the venire.
 1 On a trial under an indictment for mur- der of a woman, where 1t is shown that the deceased was killed during an encoun- ter between her husband and the defend- ant testimony showing that the deceased and her husband did not live peaceably together and that he had been very cruel to her. Is irrelevant to any issue in the case and inadmissible in evidence.
 B. Same: same-In such a case, the ap- peals made by the dec as sed to the de- fAndant at the time of the encounter with her husband, and imme diately pre- cfding the firing of the fatal shot, are res gestae of the homicide and admissible in evidence.
 g. Same; same-In such a case when 1t is shown that just after firing the fa- tai shot the defendant threatened to hit the deceased's husband. whom he was grappling. statement made by a per son present, to the defendant, telling him not to hit the husband, that he had killed his wife, Is admissible in evidence.
 7 Homicide charge to the jury; cir cumstantial evidence-On a trial under an indictment for murder, where there was was positive testimony of & the fact fact that there was also circumstantial evidence Introduced tending to show that the shot was not fired by tf defendant. charge requested by the defendant. which as- sumes that the only evidence tending to prove his guilt was circumstantial, is er- roneous and properly refused.
 refused.
 g. Charge to the jury; effect of contra diction-A charge which instruets the jury that if they believe that the prin- cipal witness for the State has been successfully contradicted as to any ma trial evidence, the jury may, in connec- lieve him entirely has a tendency to mislead the jury and is properly refused. 10. Same: bad character of witness-In the trial of a criminal case, where there Is evidence on the part of the defendant tending to show that the principal wit ness for the State was man of bad aI,, ,1AI. 4f.g-f- I,r jury. that they have right to look to the bad character of said witness in de termining what credence. If any, they will give to his testimony, is erroneous and properly refused, in assuming tha his bad character had been proved.
 T. Homicide charge to the jury; right to protect home-On trial under an In dictment for the murder of a woman where there was evidence for the defend ant that the husband of the deceased wo man invited the defendant and his com panion to his home, and that 1t was il response to such invitation they wer there. but the evidence for the, Stat tends to show that the invitation extend cd by the deceased's husband was no accepted at the time 1t was extended, an that after the defendant and his com panion came to the house of the deceased her husband requested them both t leave. and upon their falling and refus ing to do so. he went to a neighbor' departure, a charge is erroneous ant properly refused. which instructs tn Jury "that while the law regards a man. home as his castle; yet if a man invite another to his home, he has no right t attack him there. and if he does so tn visitor has the same right of self-de fense as in other places"
 12 Same; same-In such a case charge is properly refused which instruct the jury that if they believe from tn evidence that the defendant was actin in self-defense. and while so acting kille Mrs. Gage Che deceased) accidentally the jury cannot find the defendant gull 13. Same; ssme-In such case. charge is properly refused which instruct the jury that if the defendant. with n Intention of bringing on the difnculty O of encouraging 1t after it begun an Gage made the first hostile demonstra tio by rushing suddenly upon Hall with weapon, or by appearing to do so, and the accused was in such proximity to tn deceased as to render 1t hazardous to al tempt flight. or if the assault was with deadly weapon, either pistol or billie of wood, and was open and direct. the the law would not require the accused { endanger his safety by flight
 l4. Same; Same-In such a case wheT there was conflict in the evidence as { who began the difficulty between the dc ceased's husband and the defendan wherein the deceased was killed a charg fs properly refused which hypothecate the defendants acquittal upon the fac that the husband of the deceased starte towards the defendant in threatenin manner. cursing him. and upon the latte becoming suddenly angered on this at aount, he had the right to shoot at th aeceased's husband Is erroneous an properly refused.
 IS. Same: same-In such case. charge which instructs the jury that they believe from the evidence that tn defendant was in the house of the dc ceased when her husband returned froI the neighbours house where he had gOn to procure a pistol, and that upon hi returning the deceased's husband bega to curse the defendant and rushed upo him with a weapon, and the attack of tn husband was with such suddenness an fierceness as to leave no opportunity fo the defendants escape. without thereb Increasing his danger to life or limb. an If the defendant was without fault i bringing on the difficulty. then he can not be found guilty. is erroneous an properly refused, in that it loses sight ( the duty of the defendant to have r, treated while the deceased s husband Wa seeking for a pistol
 l6. Same; same-In such a case. charge is erroneous and properly refuse which instructs the jury that if they fin from the evidence that when the hu