The Montgomery advertiser., 1903-12-19
THAYER ". STATE.

Indictment for Murder.
]. Motion to quash; when comes too
llate.-A Motion to quash an Indictment
which IL made after the arraignment of
guilty, comes too late and Is properly
overruled.
2. Pleading and practice; when ruling
on demurrer to evidence not reviewed on
appeal.-This court will not revise the
rulings of the trial court on demurrer to
evidence, when such ruling is shown only
by bill of exceptions.
8. Same: effect of joining issue on in
sufficient plea.-Where a. plea, though in
sufficient, is not demurred to but issue
is Joined thereon and the facts introduced
on such issue sustained the plea, the de-
PENDANT rs entitled to judgment thereon.
T. Organization OF jury; challenge for
cause.-Where. In the organization of a
jury to try a case OF homicide, one OF the
jurors drawn, when questioned as to his
qualification. stated that he would not
hang a man except foESrape or assassi-
nation, and that assassination was where
q man killed another for money or went
TO his house and killed him, or killed him
At the instigation Of others. and then
further stated. that he would not hang
any man who had killed another In a
fight. such juror is subject to challenge
for cause.
s. Evidence; admissibility of confess
sion.-Where the officer who arrested the
defendant testifes that he made no
threat nor offered the defendant any in
ducement to make statement, state
ments made by the defendant to such of.
flcer relating to the crime with which he
is charged, are admissible In evidence as
voluntary confessions.
6. Homicide; charge of court to jury
kwtal tSzAf R,.ss
der, a charge which instructs the jury
that the fact that the deceased died
from the wound is not evidence of III will
or malice or generalization and should not
influence the jury when considering the
elements of murder and mansIaughter,"
is misleading and invasive of the prov.
ince Of the jury and is PROPERLY refused.
T. Same; same.-In such case a
charge which instructs the jury that Ito
| be murder in the first degree the killing
must have been done after deliberation,
and elaboration means a cool state Of
the blood; is properly refused as being
confusing and misleading.
s. Same; same.-In such a case, a
charge which instructs the jury that
malice from the use of a deadly wea-
pom can not be presumed in this case;"
is properly refused as invading the prov
ince of the jury.
9. Same; same.-On a trial under an
indictment for murder. a charge request
ed by the defendant is properly refused
which instructs the jury that THE evil
dence may convince you that the defend
ant is guilty and you may have fixed in
your minds the opinion that he is. Still
if the defendant probably killed Mike
Sullivan under the honest and reasona-
BILE belief that he must do so to save his
own life or to save himself from great
bodily harm and that he had no reasona-
BILE mode of escape without increasing his
danger, you should acquit him." such
charge ignoring the question Of freedom
from fault in bringing on the difficulty.
10. Same; same.-In such a case, a
charge is erroneous and properly refused
which instructs the jury that "a life
taken in the heat of passion suddenly
| aroused by hard blows upon the head
made by the deceased at tne time the life
was taken, is not murder in any degree,
and If you find that there were hard
blows stricken by the deceased on de-
PENDANTS head and that defendants blood
was sufficiently heated thereby as to
cause him to act suddenly and in hot
blood, he is not guilty of murder
IL Same: same-In such case a
charge is erroneous and properly refused
which instructs the jury that ITO con-
Wet the defendant of naanslaughter In tne
first degree the jury must believe from
the evidence in the case that defendant
killed Sullivan purposely. that is he vol
unfairly took his life without Just cause
and intended to kill him at the time ne
struck the fatal blow" since DEFENDANT
might have been guilty of granddaughter
in the first degree If he had no intention
to take life.
". Same; same.r-In euch case, a
charge Is erroneous and properly refused
which instructs the jury that 1t is for
the Jury to say under all the evidence