The Birmingham age-herald., 1904-06-30

=------------------ not necessarily be hate or even il-will against the party slain. but in law as an Ingredient of murder may be defined as the killing of human being, without le- gal justification, excuse or extenuation.
 Every unexplained killing is presump- lively malicious. You may infer 1t from the use of deadly weapon and if kill ing is shown o have been done with deadly weapon, malice is presumed un- less the evidence which shows the killing rebuts that presumption"
 Murder and Manslauqhter.
 The charge then proceeded to define tho meaning of murder in the second degree and of manslaughter in the first degree. You have heard the testimony of the witnesses both in behalf of the state and of the defendant 10 the facts and de- tails attendant upon the shooting." con- tinued Judge Greene in his charge. and It Is within your exclusive province. and your sole prerogatlve and duty to decide this matter under all the evidence in the case, applying your own intelligence, req son and judgment to such testimony You may take into consideration the evidence tending to show the position and conduct of all the parties at the time, and all the surrounding circumstances, and the bullet which the state claims was found in the body of Banholzer, and all of the evidence in reference thereto both as to tullets and pistols. the location charac- ter and course of the wound This Is q pure question of fact, which no prin- ciple of law can determine. If you decide that someone else and not shugart fired the fatal shot, or If you cannot say be- yond a reasonable doubt that it was fired by Shugart, you must need go no fur ther. for if he did not kill Andrew Ban folzer he can be guilty of no offense un- der this indictment.
 But if you gre satisfied beyond req sonable doubt that Roland T. Shugart did fire the shot which killed Banholzer, did he do SO in self defense, under the rules of law laid down by our supreme court, as the necessary conditions that must exist before that doctrine can be invoked. to justify a homicide7" ;. s~S
 The charge then defines at lehgtH in an able manner the doctrine Of self-defense.
 As to Drunkenness.
 Relative to the plea of drunkenness by the defendant the charge said:
 "The defendant claims that even if he did fire the fatal shot and such shot was fired by him, not In self defense. yet at the time he was so drunk as to be incapa- ble of dellberation or reconciliation. or of entertaining malice or of forming the specific Intent to take life. This brings us to an inquiry as to how far drunken ness may be interposed as a defense to homicide, and the extent to which it must exist to mitigate or reduce.
 | "We start out with the plain and undis- puted proposition. that voluntary drunk enness of itself, can never authorize an ae- auittal on an indictment for murder. It may. however. In certain cases, reduce murder in the first degree to murder in the second degree. or even to manslaugh- ter in the frse degree. If the intoxication is such that when considered in connection with all the evidence you can not say beyond a reasonable doubt that the ac- cused was capable of deliberation, or pre- meditation, you could not convict him of murder in the first degree, or if it is so excessive as to paralyze the mental fac ulties, and to overthrow the reason so as to renueT the dCCustd lnHtphDic Ol t0ttT- tanlng malice. then you could not convict of murder in the second degree, but only of msnslaughter in the first degree, at most but mere drunkenness. mere tenn porary fit of intoxication cannot excuse homicide. and there can never be an acquittal by reason. thereof No matter what mental unconsciousness may exist. no matter how far the reasoning faculties may be paralyzed. or the brain supplied if that condition Is merely temporary condition, superinduced solely by volunta- ry intoxicatioa, 1t will not reduce the crime below manslaughter. Thus you see. that 1t is not the intoxication itself which may mitigate, but the state of mind that may be caused thereby
 Extent of Intoxieation.
 "The extent of the intoxieation under which the defendant labored at the time of the alleged firing of the fatal shot. is for you to determine if you believe be- yond reasonable doubt that he did fire it, and such firing was not in self de- fense, and having so determined for you to say under all the evidence as to wheth- CT not he is guilty of murder or man. slaughter, under the principles of law | herein given for your guidance. fou nave heard the evidence of the defendant as to the extent of his drunkenness and the testimony in that behalf, tending to show its character and extent"
 The charge to the jury concluded with instructions as to the form of the verdict 1 agreed upon.
 After reading the general charge to the jury the court read large number of special charges prepared and handed in by the attorneys for the defense. About fifty of the special charges were accept ed by the court and read to the jury. A number were refused.
 The case then passed into the hands of the jury. It was exactly 6:2S o'clock when Judge Greene. addressing the jury said. take the case gentlemen" The in- dictment. the pistol said to have been used by the defendant on the night of the shooting, the cartridges both empty and loaded, taken from the weapon. and the bullet which is said to have been taken from the body of Banholzer when