The Montgomery advertiser., 1907-03-19

wooden partition is not a compliance with the requirements of Section 2s21 Code of 1896.
 2. Statutes: construction; adoption from other States; omission-wheret the Legislature adopts the statute of an- 1. other State practically. but omits pro-
 viso attached to the statute of the | other State, 1t clearly indicates a leg islative intent to exclude the proviso, l and the statutes are to be construed
 in accordance with the legislative in- tent.
 Appeal from Bibb Circuit Court. Heard before Hon. B. M. Miller. Opinion by Anderson J. Affirmed. Weakley. c. J., Tyson and Simpson.
 JJ.. concur.
 WILLIAMS vs THE STATE
 Murder. (Dectded June 7th. 1so6.--t1 So Rep se2)
 i. Criminal law; appeal; presump- tions-The indictment was preferred at special term of the court held on May Band, 1905. In another county in the same circuit, the statute re- I Quired that the court begin in regular session on May 18th, 1so5.v There is an | absence of evidence as to whether the court in the other county in the same circuit was in session or had adjourn | ed. Under such a state of facts, it will be presumed on an appeal from a con I viction had at trial at such special l term that the regular term of the cir- | cult court in the certain other county
 of the circuit was adjourned at the end of the first week of It's session preced- l ing the commencement of the special | term.
 2. Criminal law; appeal; record; re- view-The ruling of the circuit court l sustaining demurrers to pleas, which | t.. -f.. 0s q
 only by bill Of exceptions are not re- viewable on appeal.
 | 8. Courts; simultaneous terms
 The regular circuit judge may hold
 special terms during the session of a l regufar term of court in his circuit un-
 der Sections BPS and sSo. Code 1898. | 4 Criminal law; change of venue; I order of judge.-The ex parte order of | the judge issued to a sheriff of anoth- | CT county ordering him to retain pos l session and custody of the defendant was not judicial ascertainment that 1 there was danger of violence to the 1 defendant if placed in the jail of the
 county where the crime was committed
 on the issue of facts presented by a pe-
 tition for change of venue, because
 of prejudice on the part of the inhabi-
 tants of the county where the crime was committed.
 5. Jury; service; excuse.-The court
 has authority in . criminal case to ex- | cuse a juror on account of his wife's
 condition demanding his personal at- tention.
 | 6. Criminal law; evidence; non ex-
 pert testimony.--A non expert, witness
 on pistol or gun shot wounds may tes-
 tify that a wound made by a bullet
 was penetrating one. if he had exam l tned the same.
 l q Homicide; evidence: writ of pos
 session.---Where the evidence showed that the deceased and an officer were
 attempting to execute writ of pos session against defendant when the killing occurred, the writ was admis-
 sible in the absence of direct proof that the lands described in the writ were
 the lands on which defendant resided | and from which he was sought to be | elected. there being evidence afford ing an inference as to that fact. g. Criminal law: evidence: res ges- tae.--Declarations of the accused made lIwtN1e at the scene of the killing in | the presence of the body of the deceas- | ed with a pistol still in his hands are l admissible as part of the res gestae
 without regard to proof that they were l voluntary.
 Q. Same; expert testimony-An ex- pert was entitled to express his opin-
 ion as to where the bullet which pro-
 duced deceased's death entered his bead.
 10. Same: res gestae: continuous ransactions.--Evidence of the details | of what occurred at the time of the
 killing constituting, as 1t does one con tinuous transaction, is admissible as | res gestae.
 II, Homicide; evidence; threats.-
 Where the killing occurred during an ] attempt to eject defendant from cer-
 tain premises. 1t was permissible to
 show that year before the killing de-
 fsndant told witness he had decided not ! to give up the possession of the prop I erty, and if they came to put him out.
 he or they would die before they would | get 1t.
 12. Witnesses; impeachment; predi- | cate.--An impeaching question was | properly disallowed which was foreign l to the matter Iaid*in the predicate. 1 IS. Criminal law; instructions: fail- | ure to charge; appeal; review.-A re- l quest orally to have the court instruct
 the jury on the law of self defense
 and an exception reserved to the fail
 Ure or refusal of the court to do so.
 presents no question for review on ap- peal.
 14. Same: instructions; modification. At the defendants request, the court | in writing instructed that unless each
 and every member of the jury was con- | vinced beyond all reasonable doubt of the defendants guilt. under the evi- dence in the case, they should not con- vict him: and. that unless every juror
 believed beyond all reasonable doubt l that defendant killed deceased by shoot ing him with a pistol. within the coun- ty. before the finding of the indict- ment. and that such killing was will Sul and deliberate and premeditated and malicious, the defendant could not be found guilty of murder in the first
 degree. The court added that the first instruction simply meant that the
 jurors must all agree on the verdict, and that all twelve must agree be- fore they could return any verdict, and that the second instruction simply meant that all the jurors must agree
 on the clements of murder in the first degree.
 15 Homicide; instructions.-A charge asserting that the necessity that would Justify the taking of human life need not be actual, but the circumstances must be such as to impress on the
 rF-T, Ns.