The Montgomery advertiser., 1902-04-26
CAMPBELL V. THE STATE. Jndict,uent for Murder

i. Evidence; adrf5issiblity of declara- | tions as part of res gestae.-When evi- dence of an act is in itself competent and admissible as material fact in the case and is so admitted, the declarations &C., comranying and characterizing such act become and form a part of the res eestae of such act, and as such are admissible il. evidence as explanatory thereof. 2. Same: same; ease at bar.--On trial
 under an indictment for murder, where 1t is shown that the defendant went to
 where the deceased and the defendant S father-i l-law were engaged in quarrel,
 and that the killing ensued as the result
 of the defendant taking part in tho quar- rel. after the introduetion In evidence of
 tho testimony of witnesses to the fact that the defendant went to the scene of the altercation between the deceased and
 his sather-in-law. it is competent for the defendant to show the declarations made by him upon his starting t5 the scene of the aitercation; such declarations being part of the res gestae of his act in going to the place of the altercation.
 3. Homicide: charge to the jury.-On a trial under an indictment for murder. a chai ge is properly refused as being ar- gumentative, which instructs the jury that any threats made by deceased to- wards defendant if such threats are shown to have been made by deceased, whether recently made or not. may be considered by the jury in connection with all the other evidence in the case. in de- termining whether or not there was real or apparent danger to defendant at the time he fired the fatal shot,"
 {. Same: same.-On a trial under an indictment for murder, where the evil dence showed that while the deceased and the father-in-law of the defendant were engaged in an aitercation. the de- fendant approached them and upon his speaking to the deceased. there followed the difficulty which resulted in the lat ter's death, charge is erroneous and properly refused which instructs the jury that if the defendant approached the deceased in a quiet and orderly man. ner. that deceased replied to him in an angry manner. ssnd knocked defendant down. and that defendant reasonably and honestly believed that deceased struck him with a pistol, and reasonably and honestly believed that deceased had a pistol, in his hand as defendant arose af- ter he was knocked down, and that his purpose was to do defendant serious bod iy harm. and the circumstances were such as to reasonably produce such belief in defendants mind situated as defendant was at the time. and no reasonable and safe avenue of escape was pen to de- fendant. then defendant had the right to anticipate his sssailant and fire first, and this rule would not be changed even tho ugh it should turn out that defendant was mistaken as to ris belief that de- ceased had pistol in his hand"
 ]. Same: same; reasonably doubt.-On a trial under an indi t n1Ant for murder, charge ia erroneous and properly refused which instructs the jury that if. after looking at all the evidence in the case. your minds are left in such a state of un- certainty that you can not say beyond req sonable doubt whether tine defendant was at fault in bringing on the difficulty. and whether he acted upon the we'll grounded md reasonable belief that 1t was necessary to shoot and take the life of Arthur York to save himself from great bodily harm death, or he shot before such impending necessity arose. then thi, is such a doubt as will entitle the defendant to an acquittal"
 G. Same; same: same.-ln such case, a charge is erroneous and properly refus- ed which instructs ths jury that if the testimony points in two directions one to the guilt of the defendant. and the other to his innocence and both are equal Iy reasonable. they are bound to accept that which points to his innocence and acquit the defendant, if they believe that phase of the testimony.
 :. Same; same: same.-In such case. q charge is erroneous and properly re- fused which instructs the jury that If tho testimony shows two theories. one tending to the defendants guilt, and the other to his innocence, and both are req sonable, they must acquit the defendant. they believe the theory tending to his in- nocence."
 Appeal from the County Court of Gle burne. Tried before the Hon. T. J. Bur ton.
 Opinion by Dowdell, J.