The Montgomery advertiser., 1903-08-30
I1es>d-Notes Qf Me Decisions
 of Alabama Supreme Court.

yond recovery he was told that he was going to die, and he did die within a few hours thereafter, statements made by such person ip reference to the cir cumstances of his killing are admissible as dying declarations.
 13. Same; may be proved by oral evil dence. although reduced to writing.-The dying declarations having been reduced to writing but not signed by the deceased. or read over to him, may be proved by testimony of the person who was present | at the time such declarations were made, without producing the paper or proving | it's loss.
 | IA. Evidence; when objection comes too late.-Where after a question Is propound- ed to a witness and he answers 1t, and a general objection is interposed such obfection comes too late and Is properly overruled.
 of counsel to the jury-On a trial under an indictment for murder, where there was evidence introduced by the defendant tending to show that the deceased had seduced niece of the defendants wife by means of promise of marriage, and subsequently the court ruled out all of the evidence as to the promise of mar l riage. If the counsel for the defendant, in his argument to the jury. states to
 
 | the deceased had seduced niece of the defendants wife by means of a promise ot marriage, it Is no error for the court of its own motion to stop the counsel in his argument. and withdraw from the jury the statement of the counsel that the deceased seduced the young lady by means of a promise of marriage. l6. Homicide; charge of court to jury as to cooling time.-On a trial under an indictment dor uha evidence tending to show that the de- | ceased had seduced niece of the de- Pendants wife an instruction by the court in its general charge that if the jury believe from the evidence that the deceased had connection with the niece of the defendants wife and the defendant was informed of that fact and he had time to think and did think. and that hls mind was in a cool state'' then, '.as a matter of law. that would be cooling time absolutely" and the killing would be murder and not manslaughter, is free from error.
 | H. Same; charge of court to jury..-On | trial under an indictment for murder. an instruction by the court in its general charge that "the burden of proof is on the defendant to show that he could not retreat without danger or apparent dan ger of losing his life or suffering great bodily harm, and when the court says the burden of proof is on the defendant, It means that the evidence must ne suf- ncient to raise a reasonable doubt" if faulty at all, is faulty in that it was too favorable to the defendant
 IS. Same; same.-on trial under an indictment for murder a charge Is free i from error and properly given at the re- quest of the State. which instructs the jury. eff a party enters into a contest dangerously armed and fights under an undue advantage. even though mutual blows pass. if he stays his adversary pur- suant to previously formed design, eith- CT special or general. to use such weapon in case of an emergency in which his life would not be endangered. or he would not be in danger of suffering great bodily harm. 1t Is not manslaughter but 1t Is murder"
 | 19. Same; charge as to seif-defense = On a trial under an indictment for mur- der. a charge asserts correct proposi- ton of law and is properly given at the request of the State. which instructs the jury. "Tf the defendant provoked or brought on the difficulty. bor entered will ingly into the fight with deceased. then he cannot set up self-defense in thls case"
 20. Same; same.-On trial under an indictment for murder charge asserts correct proposition of law and Is prop erly given at the request of the State, which instructs the jury "To make the plea of self-defense available. the defend ant must be without fault. If he was | himself the aggressor he cannot invoke the doctrine of self f-defense. even if the deceased was approaching him in < hos tile manner; and whether the necessity | to take the life of the deceased was real or only apparent. If brought about by the design. contrivance or fault, of the defendant. he cannot be excused on the plea of self-defense.'' 1 21 Same; charge as to malice.-on d trial under an indictment for murder. a charge asserts a correct proposition of | law and is properly given at the request of the State which instructs the jury. 'In case of homicide the law presumes malice from the use of deadly weapon. and casts on the defendant the unus of repelline the presumption unless the evi- dence which proves the killing shows also that it was perpetrated without malice. and whenever malice is shown and is unrebutted by the circumstances Of the | killing or by other facts in evidence, there can be no conviction for any less degree of homicide than murder"
 2. Same; charge as to murder in first degree-On a trial under an indictment for murder, a charge asserts a correct proposition of law and is properly given at the request of the State which in- structs the jury that if tho defendant. Tn the County where the indictment was found. before the finding of the indict- ment. "purposely killed the deceased by shooting him with a pistol with a wick edness or depravty of heart towards said deceased. and the killing was determined on before hand. and after reflection (for however short a time before the fatal shooting is immaterlaD. the defendant is gufity of murder in the first degree" g. Same: charge as to self-defense.- On a trial under an indictment for mur- der, a charge asserts a correct proposition of law and is properly given at the re- quest of the State. which instructs the Jury, When the defendant sets up self defense in justification or excuse of a kilIirg. the burden of proof Is upon him
 to show to 1s jury by the evidence.
 that there was a present. impending dan
 ger. real or apparent to fife or limh. or
 of grevious bodily harm from which there
 was no other probable means of escape.
 unless the evidence which proves the hon-
 icide proves also its excuse or justinca-
 tion."
 24 Same: same.-On a trial under an indictment for murder. a charge as to
 se'f-defense which Ignores all question of ! r. nwa