The Montgomery advertiser., 1905-04-27
inion by Anderson. J.

| ants right and title hereunder. and
 are bTopeFdly in evidence
 opinion by Anderson. J.
 BROWN V. STATE.
 | Prosecution for Assault with Intent to | Murder--Appeal from the Circuit
 ,,dn Conflict in evidence; introdne,
 prosecution for assault with intent to
 murder. where there Is conflict in the
 evidence as to who was the aggressor | 1t Is admissible, after laying predicate
 to prove a contradictory statement of
 the prosecuting witness as to material
 2. Effect of contradictory state
 ments as to credibility of. the witness's
 testimony; charge in relation to.-A
 as to material facts in this case. this may, in the discretion of the jury. ere
 ate q reasonable doubt as to the truth
 not assert a correct legal proposition Gregg v. state 1os Ala. IA; wilbourn 3. Assault with intent to murder; circumstances. from which intent may be inferrsd;aIn a prosecution for as, as, may be inferred from the character of the assault, the want or use of a dead
 sxsapsns aoe oe sf facts asssaT o
 {. Same; same: length of time that
 ensth o tnRe Rsr that the assanisd paas is confined as result of the wound in- flfcted on him by the defendant is ma- tsere was va Sno an Intent to anns kiil ss the e e3 tent of the wound may shed light upon the subject and would be a proper con sideration for the jury in determining
 5. Proof of good character of wit ness. whose testimony had been im- statements. admissible-Where a wit ness has been impeached by proof of contradictory statements, evidence of the good character of such witness is
 6. Same; testimony of father.-The father is a competent witness to testi- "7. Admitted ds % %showines as as to sos evidence iof absent witnesses: effect when such showing Is not introduced and the wit the showing.-The rue that an attempt by party. to make the false appear true is a circumstance which the jury the party so doing, does not apply where ashowing Is admitted. but is not introduced by the party in whose favor ly appears and testifies contrary to the
 5. Same: introduction of witness. defense has been made, by the. state.- A showing as to the witness of the de- fense which has been admitted by tae State but not introduced by the de- fense and which, on the appearance of the witness during the trial is intro duced by the State. becomes the evil dence of the State. and the State can not contradict same by the introduc- tion of the witness to prove the falsity of the showing.
 9. Drunkenness as proof of lack of intent.-To disaprove specific intent, partial intoxication will not avail. The iptoxieati9n in must be shown to be such because of drunkenness, were so over come and stupefied as to render him incapable of distinguishing between
 10 Presumption of malice from use of deadly weapon.-Tne law presumes malice from on, the use of deadly weap. evidence in the case rebuts that pre- sumption. and unless the evidence over s n law Suen mpasionpp assau i9ch
 Il: Charge, containing a statement e@onmit @ T an Assault % Upon me Grady nox with a knife There Is evidence that he did," is proper when the fact of such assault with knife is undisput-
 i2.. Deadly weapon; knife will be so considered if 1t cuts through the cloth noGnoes it deadly df 'We weapon S if PrSl you should find from the. evidence that 1t cut through the clothing Is proper. ton with which jury should regard de- tendant's guilt in order to render yer dict of guiity.-,A charge that "if after a. fixed conviction of the truth of the are satisfied beyond a reasonable doubt-then # is your duty
 14. Degree of doubt necessary to support acquittal; mere possible doubt charge to the. jury that | quittal must be actual and substantial | not mere possible doubt-because | everything relating 10 human affairs | open to some possible or imaginary | doubt" Is correct
 IS; Possibility of innocence lnsufn the jury that If you believe from the | evidence beyond a reasonable doubt guilty. you must convict him." is cor rect.
 of.--A charge to the jury that you are the sole judges as to the credibility of | -he witnesses and the weight that should be given to the testimony" Is
 i7. A charge which is a mere argu- baf Re irR Ro muse 1e ry ths csse he evidence and not by the jokes of is mere argument Intended Q answer rtfs the opposing counsel and Is
 IS. Same: acquittal of defendant who Is doubtfully Ruilty.-A charge hat the law is as much vindicated by .urninR loose the doubtfully guilty as Dy convicting the guilty" Is a mere ar- yument and Is properly refused.
 .erlal fact insufficient to justify ac- ,harge that If the jury have any doubt of any material fact n this ease, they must acquit the de-
 20. Assault with intent to murder; f defendant, had death ensued. would n the first degree, he cannot be found guilty of.-In prosecution for assault with intent to murder, if the defend l mt. had death ensued, would only have been guilty of manslaughteT in the first degree. he cannot be found guilty. | where death did not ensue. of assault with intent to murder.
 2l. Same; same; charge must define what is manslaughter in the first de- Sree.--A charge to the jury that if he jury believe from the evidence that [ Cox had died it would only have | been manslaughter, in the first degree, l he jury cannot find defendant guilty ,f assault with intent to murder is properly refused, because 1t rsfers a of law to the jury and leaves { to them to define what is man. daughter in the first degree.
 22. Evidence; charge as to effect ! )f.-A charge to the Jury that If the ury believe that defendant had made friends with Cox in good faith and that Cox then began to abuse defendant bout the butter and cursed defendant ] defendant then inflamed by the blow cut Cox with his knife won l