The Montgomery advertiser., 1904-03-05
wArRrp " THE STATE.

inoictment for murder.-Appeal iroh '"e
 Circuit Court of Walker
 l. Act creating Fourteenth Juolcia, circuit; when first term of court shouiu De held.-The act of the Legislature, ap- proved March C, 1905, creating the rour- ,teenth Judicial Circuit providing that there should be two terms of the court for Walker County the first term 10 De, Bin on the first Monday in January, anu may continue with the exception or two weeks to the 30th day of June' ana tne second term should convene on the nrs' Monday In September and may continue until the 31st day of September or each year, did not have the effect to nx term or the court to begin on the hrst moh- day in January 1908, that time being prlor to tho passage of the act; and there IS nothing in said act to authorize the com vening of the court for the holding or regular term on day in March sub sequent to the passage of the act. Tnere- fore, a grand jury of said court. organlz- ed on March 1G, 1909, was not iegaliy organized, and an indictment preierreo by such grand jury. was subject to pc quashed. Mcclellan, c. J., and Dowdell' J., dissenting
 2 Trial and It's incidents: when actioh of court as to examination of small poy as to his competency. without injury
 
 a case, the witnesses are called to be sworn, and the defendant requests the court to examine a small boy who was called as a witness as to his competency before having him sworn the courts re- fusal to comply with this request, II error at all, is error without injury, when It does not appear that the witness testlneo In the case.
 g. Dying declarations: admisslDlnty m evidence.-On a trial under an indictment for murder, where the deceased, after having stated that she could not get well and was bound to die and told her sister what she wanted done with her children. statements then made by the deceased as to the identity of the defendant as the person who had inflicted the fatal wounds, are admissible in evidence as dying declarations.
 f. Same; same.-Statements made by a deceased should not be excluded as dying declarations. upon the ground that they were made while the deceased was under the influence of opiates. when the physi- clan who was in attendance upon her stated, that while she was under the influence of morphine 1t did not make her fighty, but made her sleep some.
 5 Same: same.-Where statements or a deceased tending to identify the defen- dent as the party guilty of the homicide have been introduced in evidence as dying declarations, it Is competent for the State to prove by other witnesses, that the person referred to and described by the deceased. vas the defendant.
 2 Homicide, admissibility of evidence On trial under an indictment for mur- der. where it is shown that the defendant was arrested shortly after the homicide. it ia competent for the officer who ar rested the defendant to testify that when he went to the house of the defendant, he found a box in his house with blood stains on the lid, 1t having been shown that the deceased, when found, was very bloody.
 I. Same: same.-On a trial slnder an indictment for murder, where the evi- dence tending to show that the defendant was guilty of the homicide Is circum- stantial 1t Is not competent for the de- fendant to prove that when arrested, he asked to be taken before the deceased for Identification.
 &. Same; same; proof of motive.-On A trial under an indictment for murder, evidence of motive on the part of a third person to commit the murder, Is not ad- missible where there Is no testimony tending to connect such person with the commission of the crime.
 9. Trial and it's incidents; discretionary with the court to allow witness to be re- called.-On the trial of a criminal case, after the defendant has finished his ex- animation of his witnesses 1t is discre- tionary with the court to permit the State to recall one of its witnesses for further examination; and the exercise of this discretion is not reviewable.
 10 Argument of counsel before jury Where, in his argument before the jury, attorney. in commenting upon the testi- mony of a witness. who had made con tradictory statements. he Is within the rango of legitimate argument in saying that he would leave 1t to the jury to say whether she told the truth upon the stand, or when talking to the sheriff. and in asking the question, if 1t was not more reasonable to believe that she was telling the truth when talking to the sheriff than when she testified on the stand.
 il. Charge of court as to reasonable doubt-A charge is properly refused as being argumentative. which instructs the jury that "A reasonable doubt, within the meaning of the law, Is such as would cause reasonable, prudent and con siderate man, in tho graver and more i'm portant affairs of life, to pause and hesi- tate before acting upon the truth of the matter charged. and if you have such doubt in this case. you must acquit the defendant.
 F. Same.-A charge is erroneous and properly refused which instructs the jury that upon the trial of a criminal case, if a reasonable doubt of any facts neces- sary to convict the accused Is raised in the minds of the jury, by the evidence itself. or by the argument of counsel, based upon any hypothesis reasonably consistent with the evidence, that doubt is decisive in favor of the prisoner, and he should be acquitted
 13. Charge of court in criminal case.- A charge is properly refused. which in- structs the jury that "the law deems it better that the guilty go unpunished, than that the innocent should suffer-"
 IA. Same.-A charge asserts correct proposition of law and is properly given at the request of the State. which in-