The Montgomery advertiser., 1904-03-01

as to eaeh.--Where, in the trial of criminal case, the ease is submitted to the Jury upon issue joined upon the plea Of former acquittal and also unon the plea of not guilty. the defendant $ entitled to have the jury pass upon and return a verdict upon the plea of former acquittal; and verdict of guilty, with out passing upon such plea. but respon- siye only to the plea of not guilty. will not support judgment for conviction.
 5' ,1ndietment; not quashed because County Commissioners not commissioned. The fact that one who had been duly elected a member of the Court of County Commissioners and who acted with the other commissioners in the drawing of the grand Jury had never received his commission. constitutes no ground for ouashing an indictment preferred by the grand jury so drawn: such commissioner being a de faeto commissioner.
 Former jeopardy; does not exist when Investigation had before commft- ting magfstrate.-The institution of A prosecution for the commission of a fel- ony before the Judge of the County Court, who has only jurisdiction of a committing magistrate, the investigation of such charge Dy such judge and the binding of the defendant over to await the action Of the grand jury, do not con- stitute former jeopardy
 5. Indictment for assault with intent to murder; admissibility of evidence. = Where, on trial under an indictment for an assault with intent to murder, the evidence tending to connect the defend ant with the commission Of the crime was circumstantial testimony tending ia show that the defendant was not in the vicinity of the place where the crime was committed on the evening of It's commis- sion. is admissible In evidence; it's weight beng a question for the determination of the jury.
 6. Same; same.--On a trial under an indictment for an assault with intent to murder. where it is shown that the party assaulted was shot from ambush, and the evidence tending to connect the defend ant with the commission of the crime was circumstantial. but 1t was shown that the defendant on the morning of the day the assault was made had a diff ficulty with the person assaulted. decla- rations of the defendant made a few days before the assault, when talking about the person assaulted. that if he should ever have a difficulty with him, he. the defendant, would not fight a fair fight, are admissible in evidence.
 T. Abstract, argumentative and mis- leading charges are properly refused.
 6. Indictment for assault with, intent lO dS kO TGdSOndDle doubt.-On a trial under an indictment for assault with intent to murder. where the evidence tending to connect the de- fendant with the commission of the crime is circumstantial a charge which instructs the jury that "a probability that some other person may have done the shooting is sufficient to create a req. sonable doubt of the guilt of the defend ant, and. therefore, Of his acquittal," as. VtRnunaffin1 of faN md should be given at the request of the de. fendant.
 9. Same; charge as to circumstantiai evidence.-In such case, charges which instruct the jury that 'circumstantial ev- idence that will authorize conviction must be as strong and convincing. aa positive testimony" are erroneous and properly refused.
 10. Charge as to reasonable doubt.--A