The Montgomery advertiser., 1904-07-13


 to ask the witness If in the morning of the day on which the deceased died ne did not say that his bowels hurt him, and that if he could get rid Of the bowel trouble he would get all right?'
 b. Homicide: admissibility of dying declarations.-On a trial under an fn- dictment for murder. where it is shown Dy the evidence that the deceased re- peatediy stated that he was going to die and had given up hope of recov- cry and that although his friends tried to encourage him he repeatedly ex- pressed his belief that he was going to oie. statements made by the deceased under such circumstances. are admissi- ble as dying declarations.
 D. Same; same.-In such a case 1t IS not error for the court to allow witness who wrote down the state ments of a deceased. to testify that the deceased asked him "to take down his testimony in regard to how the difficulty was"
 7 Homicide; admissibility of evil dence.-On a trial under an indct- ment for murder, where 1t is shown that on Thursday before the deceased was killed on Saturday. the defendant and the deceased had a difficulty. 1t is competent for a witness to testify that the deceased on the Friday morning after the first difficulty and prior to the shooting, asked the witness If he could get a pistol for him. or if he knew who had a pistol he could get" 1t not being shown that the question was asked with reference to the de- fendant.
 8. Witness; charge of court as to contradictory statements.-A charge which instructs the jury that If a wit ness who has been examined during the trial has made contradictory state ments as to material facts in this case. the jury may look to these contradic- tory statements in order to determine what credibilfty they will give to tes- tfmony of the said ''witness. asserts a correct proposition of law. and is properly given at the request of the State.
 D. Defendant as a witness charge as to weight of testimony.-Where the defendant in a criminal case has testi fled as witness in his own behalf. a charge which instructs the jury that the defendant "is interested in the re- suit of this trial and that they may look to this fact in determining what weight they will attach to his testi- mony. asserts a correct proposition of law and Is properly given at the re- quest of the State.
 10. Reasonable doubt: charge in ref erence thereto.-A charge In a crimi- nal case Is free from error which in structs the jury that "a reasonable doubt must be actual and substantial, not mere possibility speculation. It Is not mere possible doubt. because everything relating to human affairs and depending upon moral evidence is open to some possible doubt or imag mary doubt"
 II. Same: same.-A charge in a , criminal case is free from error which instructs the jury that while the law | requires the guilt of the accused to be proved beyond reasonable doubt 1t does not require that each fact which may aid the jury in reaching | the conclusion of guilt shall be clear | ly proven but. that on the whole evil dence the jury must be able to pro- l nonnce that guilt Is proved to a moral | certainty. or beyond reasonable | doubt"
 l 12. Homicide; charge as to reason | able doubt.-A charge Is erroneous and properly refused which instructs the | jury that before they can convict l the defendant In this case, they must
 be satisfied to moral certainty not
 only that the proof is consistent with
 the defendants guilt, but that it Is | wholly inconsistent with every other
 rational conclusion; and unless the
 jury are SO convinced by the evidence
 of the defendants guilt that they vii
 each venture to act upon that decision
 in matters of the highest concern ant
 importance to his own interest, the,
 must acquit him."
 13. Attorney; argument to jury
 On trial under an indictment fol
 murder, where the dying declaration.
 of the deceased have been introduced
 in evidence. the statement by an attor
 ney for the defendant. in his argumen
 to the jury, that the experience ant
 observation of mankind and of the jury
 has probably convinced them that tn,
 dying declarations of a man are of (
 very unreliable species of testimony
 and that more innocent men hay,
 been convicted upon this character oi
 testimony than upon any other." arc
 properly excluded.
 Affirmed.
 Opinion by Dowdell, J.
 ITS SHAME.