The Montgomery advertiser., 1903-04-18
HEAD NOTES OF HE DECISIONS A
 OF THE ALABAMA SUPREME COURT
DrsAt. V. THE STATE. licfnnnnf for ssa,ilt with Int mt tx


 DEAL, v. THE STATE. Indictment for Assault with Int snt td Murder.-Appeal- from the Circuit Court of Henry.
 II. Evidence: identity Of defendant. -.On intent to murder who Is indicted jointly with two othe.s, evidence that after the asssult one of the three went across the street in the direction of a. market place. is rendered admissible by evidence subss- quently introduced tending to show that defendant was at that market place 2 few minutes after the cutting and there said he had cut the person alleged to have been assaulted.
 Evidence .s inadmissible for defendant in criminal case as to what office was held by the witness testifytng and who made the arfest-being g.immateftal.
 i.ient.-whete no predicate has been laid for tmpeaching a witness. 1t Is proper not to allow defendant to prove what state uent was made by the witness after the dessE WFn.:.es 2: ts wns arediSsy sSt s coa. Secs 1796. 1796.--The fact that witness has been. convicted for burning gin house ;s 1; admissible as bearing on bis credibil-
 B.. Charge of court; conflict. between oral charge and special charges.-on the trial of criminal case. the giving at the request of the State of charge as- eerting that the charges given at de- fendants request are not in conflict with the general charge of the court. is not error, unless the record afYirmatively shows that there was such conflict.
 G.. Same; singling out portions of the evtdence.-In a criminal case charge requested by defendant has an undue tendency to withdraw the jury's consid- eration from the whole to particular parts of the evidence. which asserts that If there is any one fact. arising out of the evidence which is sufficient to create a reasonable doubt in the mind of the jury. then the jury should find the defendant not guilty"
 '. same; involved and argumentative cnarge.--In criminal case a charge for defendant is involved and argumentative before the jury can convict the defend ant they must be satisfied to moral cer- tainty not only that the proof is consis- tent with the ,defendants guilt. but that 1t is wholly inconsistent with every oth4r rational conclusion, and unless they are so convinced by the evidence of defend ants guilt that they would each venture to act upon that decision upon matters to his own interest. then they must find the defendant not guilty"
 3. Assault with intent to murder; charge; former difficulty.-Where the only evidence of an. attack on defendant by H.. the person alleged to have been assaulted. related to time preceding the difficulty in which defendant cut him. a charge Is improper which predicates a right on defendants part to cut such per son in the last difficulty on account of what had occurred in the first.
 9. Same; fault in bringing on difficulty; invading province of the Jury.--A charge invades the province of the jury which asserts that defendant was without fault 1T. bringing on the difficulty"
 10. Same: previous difficulty: charge Where D. was being tried for an assault with intent to murder H, an instruction for defendant Is argumentative and gives which instructs the jury that If the jury believe from the evidence that H. as- aaulted D. at the time of the difficulty, then they may consider the previous con duct of H. toward D.. if they had had any previous intercourse. in determining how much force was necessary to repel the assault, unless they believe that D. was at fault in bringing on the difficult
 Il; Same: invading jury's province: re- polling assault.-Where D. Is on trial for assault with intent to murder H. charge invades the jury's province which in- structs that If the jury believe from the evidence that H. attacked D. at the time out fault in bringing on the difficulty. then they cannot convict the defendant or an assault to murder, although you, may find that D. used more force in re- peluuE tue uiHculty than was reasonably necessary"
 F. Assault to murder; conspiracy: lia- bility of one for acts of others.-On the separate trial of one charged with two others with assault with intent to mur- der, where there Is evidence tending to show combination of purpose and ef- fort to cut and murder the person al- legged to have been assaulted. defendant is liable for the acts of his co-conspirators In carrying out that purpose as well as for his own acts: and a charge is prop- erly refused which seeks to limit the evi- dence as to their acts to explain the con- duet of defendant at and before the dif- ficulty.
 13. Same; retreat; former difficulty: freedom from fault. Where on the triai of one charged with assault with intent to murder, there, was evidence for defen- dant tending to show that on the same afternoon, but before the parties met in the cutting affray, H.. the person alleged to have been assaulted. had cursed de- fendant and pursued him with a drawn Knife; that shortly. thereafter. as def en- dant was passing H.. the latter caught him in the collar and knocked him to his knees. and that then while H. was on him defendant drew his knife and cut 1T Held: the defendant was entitled to have the jury instructed that If the defendant was free from fault in bringing on the difficulty. then he was under no duty to retreat unless You believe he could have retreated without increasing his danger or with reasonable safety"
 Reversed and remanded.
 Opinion by Sharpe, J.