The Montgomery advertiser., 1906-10-24

accused declared he would kill every one of the name, admissible to show malice. even though such declaration did not particularize decedent. 6. Criminal law: evidence; declara- | tions; admissibility Where the facts show that the declarations of ac- cused were voluntarily made, they were admissible without necessity for predicate being laid.
 9. Homicide; evidence; admissibfli- ty.-Where the theory of the prose- cuton was that the killing was done as result of a conspiracy between accused and his son. evidence that just prior to the dificuIty some one said there ts going to be fight was inadmissible fin the absence of show ing that one of the alleged conspira- tors made such statement
 10. Same .--When the tLestion as 1 to who provoked the difficulty is ia dispute evidence that shortly befor. the killing accused was dancing and said. Where is decedent. .ome and dance some while you are mad,' is admissible as showing the status of mind of accused towards decedent. II. Same; evidence; res gestae.- Evidence of what was done and said by accused with reference to deceased on day of dihculty and Sading up to the diffculty was admissible as res gestae.
 12. Same.-When taken with dec- 1 laration of accused made after the d 'ficulty, i've have come to kill de- edent and we are going to do it. evidence that accused. about an hour before the dihiculty. cursed and call ed decedents name, was -npetent.
 13. Criminal law; evidence of ab- sent witness on preliminary trial; ad- missibility.-When 1t is shown that witness, who testified on the prelim- mary hearing. was 8 resident of an- other State and was not present. his testimony taken down at the prelim mary trial, was admissible.
 14. Same; conspiracy; proof; sufn- ciency To establish conspiracy to do an unlawful act, it is not indis- pensablN that the testimony should show the existence of @ conspiracy any definite time prior to the doing of the act; 1t may have arisen on the spur of the moment
 l6. Same: nature of proof.-Posi- tive evidence Is not necessary to prov; conspiracy; its existence may be In ferred from circumstances attending the doing of an unlawful act. and from the conduct of the parties sub sequent thereto.
 16. Same; decision of court on pro ceedings for bail; effect.-Where the judge, on habeas corpus, allowed ac. CuSed udAls WuiCu JuuSmcut was dI- firmed by the appellate court, this fact did not preclude the State from pros ecuting the accused for -.-rder in the | first degree. and from introducing evil | dence other than that contained in the record of the proceedings on | which the judgment was rendered. It did not rehder the matter of bail res adjudicata as to the grade of homt | eide
 IT. Same; parties to offense; aiders and abetters; manslaughter.-Under | our law there may De aiders and abetters to the crime of manslaugh- ter, as we'll as to the higher grades Section 5306.
 | IS. Same; evidence; res gestae.- What occurred from time defendant and deceased walked to the place at which the dif1culty which resulted in the killing arose, up to the conclusion of the difficulty, Is part of the trans | action and admissible ar res gestae. l9. Same; trial instructions; re- quests; necessity That the court failed to limit evidence 70 the pur- pose of affecting the credibility of witnesses. for which 1t was compe- cannot complain in the absence of motion or requested instruction to | that effect. 20. Witnesses; impeachment: proof of animus.-In a prosecution for hom
 icide committed by the lon of the accused it was competent to ask the son as witness, about a converse | tion in which he made threats against deceased, for the purpose Of showing his animus, and as affecting his cred | ibility. l 21. Same.-Upon denial by the son of accused that he had made threats against deceased, 1t was >ompetent to introduce testimony showing that he | had done so.
 g. same.-where accused testified that deceased knocked Aim down, l Jumped on him, caught Jim by the throat with his left hand and began to beat him in the face with his rigt hand. 1t was proper to permit him to be asked. on cross, if he did not say after the difficulty that he was not | hurt.
 23. Criminal law; trial structions: evidence.-In a trial for murder where there was evidence tending to support self defense . charge assert ing that there was no self defense In the case was erroneous, as a charge on the effect of the evidence, and as taking material inquiry from the jury.
 24 Same; instructions; aiding and ahettng: homicide.-An instruc- | 'i'ii aSSeltis 'ndt accused can- not be guilty as an aide- or abettor in the killing. if he gave no
 assistance or uttered no word to the person doing the killing" Is mislead- Ing ana properly refused for using the disjunctive "or' instead of and" be- tween assistance and uttered.
 25. Same; instructions: applicability | to evidence; homicida-Where there was evidence tending to show q con- spiracy between the accused and his son to kill deceased. an instruction ig- noring the theory of conspiracy was properly refused.
 26. Homicide: self defense; instruc- tions.-An instruction asserting that the burden of proof Is not on the ac- cused to establish self defense by a preponderance of the evidence. hut. If
 the evidence raises a reasonable doubt
 as to whether accused acted in self
 defense, he must be acquitted :s faulty
 in that it does not define what con
 tstiutes self defense and is misleading
 as to burden of proof.
 27. Homicide: instructions: aiding
 and abetting.-Where there was evil
 dence tending to show that at the time
 of the killing by his son accused stood
 in front of deceased with his hand
 near his pocket as if attempting to
 draw a weapon. an instruction that ac.
 cused could not be found guilty as an
 alder or ahettor if he gave no assist
 ance or uttered no word to the per
 son doing the killing. and if accused
 was not present by preconcert. or
 present with the knowledge of the per
 son doing the killing. with intent tc
 aid him, unless he actually took part
 i,,