The Montgomery advertiser., 1906-11-18

 Weakley. c. J., and Hara1son and Dowdell. JJs concur.
 HAMMOND vs THE STATE. Murder. Decided June 30th. 19os.-- 41 So. Rep. 761.)
 !. Jury; special veuire; drawing jury.--It is not essential. under sec- tion b004. Code 1898, that the presid@ ing judge call out the names of the jurors as he draws them from tho | jury hox
 9. Same; selection of jurors.--where af1rmatively appears that the list i, of jurors made by the clerk was com posed of the names drawn by the judge and placed in an envelope; that the names an exact copy of the names on the list so made out. and that 4 copy Of the names were served on the defendant one entire day before hia trial, 1t was not prejudicial to the de- fendant the clerk did not make out a list of /the names immediately after they we're drawn, but kept them in an envelope and made out the list some four hours later: and. if not strictly in accordance with section 5004, any er- TOT was cured by section 433S. Code 1886.
 | 3. Same: mistake in name; motion to quash.--A mistake in the name of any person drawn as juror for the trial of a capital case. either in the venire or the copy served on defendant. | is not sufficient grounds upon which to duash the venire, or delay the trial. under the express provision of section 5007. Code 1896. The court must dis l card such names and direct that oth- CTS be forthwith summoned. 4. Criminal law; evidence; res ges- tae.--Evidence that after shooting de- ceased defendant shot a brother of de- ceased is admissible as part of the res gestae. So, also, evidence that some of the shot from defendant's gun went through the clothes of a witness
 5. Same; ievidepce; xclusion of vi- dnc.--Th party calling forth an answer responsive 10 his question has no right to have it excluded.
 6. Same; opinion evidence: conclus- ions.--A witness may not state that if certain named persons had exchanged pistols he would have scent 1t. Such a statement is mere conclusion, !. Same; instructions; Impeachment of -witness.--An instruction asserting that if the jury did not believe from all the evidence, that the witness made the contradictory statements attribut- ed to him, then such witness wa¬ impeaehed. was correct and imIfep- er1y refused
 g. Same; credibllity of witnes.--A charge asserting that if the States witnesses had exhibited bias against the defendant or anger, aud satisfied the jury that they had not testified truly, and that they were not worthy of belief, and the jury through their testimony should be disregarded. the jury might discard it altogether is correct and its refusal error 9. Same.--A charge asserting that if upon all the evidence the jury be- lievcd that the testimony as to the good character of certain witnesses is sufiicient to overcome the impeachlng testimony against them, the jury should weigh their testimony In t..e | light of this proof of good character along with all the other evidence, falls within the exception to the rule against giving undue prominence to particular parts of the evidence. and the rule that charges should not be argumentative, is a correct charge and its refusal error.
 10. Same; interest Of defendant as Q witness.--A charge asserting that the jury must conslder the testimony of the defendant in the light of the interest he has in the result of the prosecution was properly given il. same; appeal: presumptions; consistency of instruction.-where the oral charge of the court is not set out In the transcript, 1t will be presumed, on appeal. that the charges given for defendant were not in conflict there- with.
 12 Same; instructions: reasonable doubt.--A charge asserting that it makes no difference in what language the definition of a reasonable doubt is clother. when boiled down and brought to it's last analysis it means no more or less than doubt growing up out of all the evidence for which the ' 4YtH, erFxy tinguished from a mere possibility. while calculated to mislead and con- fuse the jury, and the better practice is to refuse such charges, does not lconstitute reversible error.
 IS. Homicide: evidence admissibi1i- ty; circunlstances preceding ant.--It is proper to limit defendant to proof of charges against deceased for violation of the ordinances. and not permit de- tails of the act and conduct of deceas- ed upon which the cnarges were bas- ed, when it appears that the defendant was marshall of the town. and the eVi- dence tended to show that he was att tempting or intending to arrest de- ceased on such charges at the time the killing occurred.
 IA Same; justifiable homicide; arr rest.--A marshall in good faith at- tempting to arrest, Is justified in fir ling first when the offender was armed with a pistol and committed an over act evidencing an intent to immed- lately use the pisto Iunder such cir cumstances as were sufficient to create in the mind of a reasonable man, and l.did create in the mind of the officer. the belief that the offender was about to draw the pistol and immediately fire
 IS. Same; evidence; admissibility; threats; bad character.-It was error to exclude threats alleged to have been made by deceased against defendant, and to exclude evidnce tndng to show that deceased was of a turbulent, dang erous and blood-thirsty character, whre the efense was that the defen- dant, the town marshall. was in good faith. attempting to arrest deceased for violation of the town ordinances when the killing occurred
 16. Same; instructions; self defense. l--Where there was evidence tending to show that defendant approached de- ceased under guise of making an arr rest. but killed from vengeance or anger, at deceased, instructions seek ing to invoke the doctrine of freedom from fault which fail to hypothesize good faith on the part of the defon- dant in carrying a gun and in making the arrest, arc bad and properly re-