The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1904-07-18
Head-Notes Of the Decisions
of Alabama Supreme Court

senoe of attesting witness (Code,
Sec. 17sD has reference to the test
fmony Of the maker as a witness In the
trial of case or before commissioner,
and does not authorize the proof Of the
execution of a deed or by the declara-
tions OF the deceased grantor made out
ofcourt.
2. Adverse possession; when statute
as tc filing notice not applicable
Where party claims land under color
of tile or under bona f1de claim of
purchase. the statute requiring the Ill
ing of notice OF adverse possession
Code, Sections 1541-1546) has no appli-
cation.
Reversed and remanded.
Opinion by Mcclellan, C. ].
WILSON VS.. THE STATE.
Indictment for murder. Appeal from
the Circuit Court of Autauga.
1. Homicide; evidence as to threats;
objection to form of question.--while
the usual form of asking a witness. on
a trial under an indictment for muir
der, did you hear the defendant make
any threats against the deceased"
may be Objectionable as calling for a
conclusion, no injury results where
the witness answered the question by
repeating a declaration made by the
defendant which is a threat against
the deceased.
2. Same; when threats of deceased
against defendant admissible. Unless
1t Is proposed to show that such
threats were communicated to the de-
PENDANT, or that there Is question in
the case as to whether the deceased
was the aggressor or made hostile de-
monstrations tending to produce a be-
lief on the part of the defendant at the
time of the homicide that he was in
peril of life or grievous bodily harm,
threats made by the deceased against
the defendant are inadmissible.
3. Same; statements made by deceas-
ed after being shot inadmissible. On
a trial under an indictment for murder,
statements made by the deceased, at
ter the fatal shooting, in reference to
how he was shot, are inadmissible in
evidence when no predicate is laid
laration.
4. Admissibility of dying declara-
tions; when corpus deficit sufficiently
shown. On a trial under an indictment
for murder. after evidence has been
introduced going to show that the de-
ceased died from a gun shot wound
inflicted on him by the defendant, the
corpus deficit is thereby sufficiently
proved to authorize the introduction
of dying declarations.
5. Witness; admissibility of seconda-
ry evidence. Where a witness who had
testified on the preliminary trial of
the defendant and who is shown to re-
side in a different state and to be a
travelling man, and the sheriff testifies
that he has searched the county for
him, that he had been gone from the
county for more than twelve months.
there Is sufficient predicate laid for
the Introduction of secondary evidence
of the testimony given by the said wit
ness on the preliminary trial.
g. Charge of Court as to murder. On
trial under such an Indictment for
| murder, a charge which instructs the
| jury that In such case mo mere words
used by the deceased toward the de-
| PENDANT, however, abusing or insulting
| less than murder. asserts a correct
proposition of law. and is properly CIV
| en- at the instance of the State.
Z. Homicide; charge as to self de-
Tense. On trial under an Indictment
| for murder, where the defendant sets
| up self defense. a charge in reference
| to said defense which pretermits indui-
| ry as to defendants fault in bringing
| on the difficulty, is erroneous and
| properly refused.
| 8. Homicide; self defense; imminent
| peril. On a trial under an Indictment
| for murder. in order for the defendant
| to be justified in the killing on the
| theory of self defense, 1t Is necessary
not only that he should have honestly
believed that he was in imminent peril
| but tit is also necessary that the cir
| cumstances should be such as to rea'
| sonably impress him with that, belief; ant
| charge as to self defense which doe:
| not hypothesize that the circumstance
| were such as to reasonably impress
| him with such belief, is erroneous ant
| properly refused.
| 8. Homicide; charge as to reasonable
| doubt. On trial under an indictment
for murder. a charge is properly refus
| ed as tending to confuse the jury
| which instructs them that. IF any ont
| of the jurors has a reasonable doubt
| arising from the evidence in the cas-
| of the guilt of the defendant as charg
| ed in the indictment in this case. thu
| Jury cannot convict the defendant"
| 10. Same; same. In the trial of {
criminal case. a charge is erroneous
| and properly refused which instruct'
| the jury that "the only foundation FOL
| a verdict of guilty in this case is tina
| the entire jury shall believe from th'
| evidence beyond a reasonable doub
! and to a moral certainty that the de
| PENDANT is guilty as charged In tn
| Indictment to the exclusion of any
| probability of his innocence and every