The Montgomery advertiser., 1905-10-07
SANFORD vs. STATE!


 the City Court of Montgomery. 1. Criminal law; evidence; testimony of absent witness given on former hear ina.-where a magistrate. on the pre- liminary trial of defendant charged with a felony, takes down in writing the testimony given therein by a witt ness, he cannot, on the trial by jury testify as to what such witness said on examination in the preliminary trial, as the written notes of his testimony is the best evidence thereof.
 2. Same; same: res gestea.-on a trial for murder. 1t Is improper to ask A witness who testifies to dying dec- larat;on by the person charged to have been murdered, whether the deceased said he had beat up a third person. unless 1t be shown that such declara- ton is part of the res gestea.
 8. Same: homicide; evidence.-ln trial for murder, 1t is inadmissible to show that the deceased. who had said he knew he was dying, said to party, You know how this shooting was done, you know the cause of all of 1t, you know how this thing happened-it was all uncalled for, the trouble was be- tween you and me. and not any of his trouble at all"
 1. Same; witness: bias.-It is proper to ask witness if he was not unfriendly with the party against whom he testi- hes; but a question to the witness whether he was indebted to such party. Is improper.
 5. Homicide; justification; evidence Where, on trial for murder. the de- fendant seeks to justify the homicide by showing that the deceased had a difficulty with a third person. whom he was attempting to kill. and that defen- dant killed the deceased to prevent murder by him. the availability of the defense will depend upon the attitude of such third person to the original difficulty, and evidence of the circum- stances of such original difiiculty is ad- missible.
 6. Same; witness.-Where a witness has testified that she became uncon- scious at one stage of the transaction. 1t is proper to ask her condition as to consciousness at another stage. z
 T. Same: evidence of prior difhcul- ty.-On a trial for murder, evidence or the particulars of prior difficulty be- tween the defendant and the deceased is admissible.
 &. Same: evidence.--where, in a trial for murder, a statement of the deceased Is given in evidence. it Is proper to ask a witness whether at the time of making the statement. the deceased had any whiskey in him.
 g. Trial and incidents; remarks Of counsel-Remarks of counsel in argu- ment, based upon evidence which had been excluded from the jury, are ob- and objections thereto are properly sustained
 10. Verdict: Sunday.-Where a yer dict is brought in by jury on Sunday, and is then read in the presence of the judge. the sheriff. the jury and the and the jury Is then dis and on the following Monday, the defendant being in open court. the verdict is there read and entered by the court, the proceeding is regular, and will support judgment and sentence.
 II. Juror: qualification; challenge It is the duty of the court to ascertain the qualifications of juror. and when it ascertains that he is disqualified. either by his oath or otherwise, chal- lenge for cause should be sustained.
 12. Same: supplying place of sick a juror who has been accepted becomes sick before being sworn, his place may be supplied with out proceeding anew to empannel another jury.
 1s. Same: juror living over two miles from court house.--Under the statute (Locaf Acts 1soo-01, p. 2oo2), where the name of a juror Is drawn. who lives more than two miles from the court house. his name may be laid aside, and another name drawn from the box in his stead.
 Reversed and rernanded.
 Simpson, J.