The Montgomery advertiser., 1902-09-09
HEAD NOTES OF THE DECISIONS
 OF THE ALABAMA SUPREME COURT
MANN V. THE STATE.


 MANN V. THE STATE.
 Indictment for Murder.
 1. Organization of jury; right of so- hcitor to examine juryman on voir dire Where, in the organization of . petit jury for the. trial of g capital case. one Of the persons whose name is drawn. upon his examination voir dire, answers that he would convict on circumstantial evi- dence If the evidence proved the crime beyond a doubt, 1t is competent for the State to further ask said juryman: Sup pose the evidence was such that, while it left some doubt in your mind. still your mind was satisfied beyond g req sonable doubt would you convict then?'
 2 Trial and its incidents: right of so- licitor for the State tp make statement upon the opening of the case as to what he expects the evidence to show.-It is competent for the solicitor. upon the opening of . criminal case. to make c preliminary statement as to what the state expects the evidence to show. and in this way state to the jury the case as he proposes and expects to present It to them on the evidence.
 a Trial and It's incidents; objection ad- dressed to discretion of court.-On the redirect examination of witness, the
 
 pounded to him is in rebuttai. is address ed to the sound discretion of the trial court and will not be reviewed on appeal
 1. Same; same.--As to whether or not To solicitor for the State should be per- mitted to lead . witness in his examina- tion, Is a matter addressed to the discre- ton of the court: and 1t Is not error for the court. upon being requested by the solicitor for permission to lead wit A. t~. &A> ,f a xVrx that he would permit the witness to be led, inasmuch as he thinks ''he is an un- willing witness"
 5. Evidence: right to refresh memory of witness-It is not error for the court to permit witness to be asked whether he did not testify to certain facts on the preliminary trial of the defendant, when such question is asked solely for the purpose of refreshing the witness's mem- ory.
 6. Same; when, not error to refuse to allow certain questions to be answered = Where 1t appears, in the trial of a crimi- nal case that a witness for the defendant had testified to every fact within his knowledge having any pertinent and legal | bearing on the case, 1t is of no conse- | quence that the court did ot allow him to answer questions as to how certain l conversations between him and the de- | ceased arose. [. Pleading and practice; no adverse tn- l ference to be drawn from failure to in- l troduce witness.-The failure of party 1 to introduce a witness affords no ground | for argument or inference unfavorable to such party, and the fact that a wit ness has been subpoenaed by that party and is in attendance Is fmmaterial; and, l therefore it Is not competent for the de- l fendant in a criminal case, on the exam nation of witness introduced by him, | to show that said witness was subpoenaed | by him.
 g. Homicide; question properly refused which assumes facts not shown to exist. -On trial under an indictment for mur- der, where the evidence tended to show that immediately upon the defendant de- manding an apology from the deceased, | he fired upon the deceased. it is not com- potent for the defendant to ask one of his witnesses how many minutes elapsed lbetween the demanding of the apology land the firing upon the deceased by the
 defendant; such question assuming that some minutes elapsed.
 9. Homicide; admissibility of evidence
 as to physical condition of defendant and 1 deceased.-On trial under an indictment for murder. where there was evidence introduced going to show that the de- ceased was a strong, robust man physi- cally, and that the defendant was weak and delicate, further inquiry as to how 1t came to pass that the defendant was not robust and strenuous Is immaterial l and is properly refused.
 10. Same; admissibility of evidence.-On a trial under an indictment for murder the length of time the defendant had lived in the city when the homicide was committed, the length of time he had I l. a~A AA ,<Io of fc marriage were irrelevant and imperti- nent facts. and questions calling for such facts are properly overruled
 | Il. Same; same.-On a trial under an indictment for murder, 1t Is competent l for the State to ask the defendant. upon cross examination as witness if he did l not get the pistol for the purpose of mak- ing the deceased apologize for an insult which he had offered the defendant. | 12. Same; same.-On a trial under an indictment for murder. it is not compe- l tent for the defendant to testify as to l whether in his opinion there was rea- sonable method of escape without ex- | posing himself to great danger. or as to l whether he had retreated as far as he could without exposing himself to great 1 danger: such questions being for the jury | to determine upon all the facts intro- l duced
 | i3. Same; same.-On a trial under an indictment for murder. questions calling I for the conclusions of the defendant. who was being examined as a witness. are properly disallowed.
 l IA. Same; same.-On a trial under an indictment for murder. where the evil dence tended to show that the defendant demanded an apology from the deceased and immediately shot him. 1t is compe- l tent for the State to prove by the judge before whom there was a preliminary 1 trial of the defendant. what the defend ant said on the preliminary trial was his | desire and intention when he demanded the apology from the deceased: such statement on the part of the defendant | tending to show malice. reconciliation l and formed design on his part.
 l5 Evidence: competency of map or diagram.-On a trial in a criminal case, where the defendant has, during his ex- animation, made a diagram of his office which he used during his examination. 1t Is competent for the State to introduce l such diagram in evidence.
 IS. Homicide; charge of court to jury 1 Charges to the jury upon self-defense. | which fail to instruct the jury as to the
 AN OLD WAR.