The Montgomery advertiser., 1907-05-01
Head Notes of the Decisions
 of fthe AIabansa Supreme Court

1ss1 " 4HIl 4f1enM
 mere fact that defendant killed de
 ceased at the time testified about did
 not meet or equal the measure of proof
 required by law to establish defend-
 ants guilt, is argumentstive and prop
 erly refuscd.
 | Homicide; questions for jury;
 deadly weapon.--Whether or not the
 piece of timber which the evidence of
 defendant tended to show that de-
 ceased had in his hands at the time Of
 the Killing, was . deadly weapon. was
 a question for the jury.
 5. Criminal law; instructions; req
 sonable doubt.--A charge asserting that a reasonable doubt is doubt for
 which a reason can be given. and if the evidence fails to so convince the jury, then 1t amounted to a reasonable doubt. was improper and its refusal not error.
 .. Same; arsumentative instructions Ut was proper to refuse to charge
 that the mere reckless taking of hu- man life Is not the equivalent of mur- being argumentative and calculated to lead the jury to believe that the evil dence showed only . mere reckless tax. ing of human life.
 2. Homicide; instruction.--A charge is properly refused which asserts that unless the jury believed beyond all req sonable doubt that defendant intended to kill deceased when he struck him, defendant could not be found guilty. 8. Same; sen-defense--An instruc- ton which fails to set out the elements of self defense but attempts otherwise to set up such defense. IS properly re- fused. I ---,
 3. Same.-The burden is not on the State to show beyond all reasonable doubt that the defendant was at fault in bringing on the difficulty that re- suited In the death of deceased unlcss 1t appears that defendant was in imml- nent peril of losing his life or of griev- ous bodily harm.
 10. Criminal law; instructions; pre-
 sumptions.-The law presumes that a
 man intends to do what he does. II. Homicide; instructions; burden of pr6of.--It is not necessary that the danger be real, if the appearances arc such as to lead a reasonably prudent
 man to believe that the danger exists. and an instruction placing the burden on defendant to show that he was in
 great danger of losing his life or suf- fering great bodily harm was wrong as exacting too high a degree of proof. and was also incomplete.
 Appeal from Limestone Circuit Court. Heard before Hon. Joseph H. Nathan.
 
 Tyson, c. J., HaraIson and Simpson. UJ., concur. BYRNE MILL CO ys. ROBERTSON.
 Action for Breach of Contract. .--(De-
 cided January IT. 1907. AZ So. Rep.- looS.)
 1. Sales; contracts; construction; {; payment.--A contract provided for the sale of certain lumber to be delivered at S., and stating the price to be paid per thousdnd feet, as fast as loaded on cars at M. sixty days negotiable bank able paper. Held, the contract was not void for indefiniteness on the the- ory that no obligation was imposed on the purchaser to load the cars at M.. nor was the phrase sixty days nego-
 tiable bankable paper meaningless, as
 the law would imply a reasonable time
 in the absence of any provision as to
 the time of payment.
 3. Same; conditions precedent. - Wher the contract recites that the par ty of the first part agreed to manu- facture, sell and deliver lumber to the party of the second part from time to
 time. and the party Of the second part | is obligated to receive the lumber. and the price to be paid per thousand feet was stated. the stipulation to deliver | was an independent covenant and a condition precedent to the duty of pay I ment, and a failure ors refusal to fe-
 liver would constitute breach for | which an immediate action would lie. 8. Same; breach; waiver The right of a seller to terminate a con- tract of sale upon the refusal of the purchaser to perform by payment for goods already delivered, may be waiv- | ed by words or by conduct. T {. Same; payment The provision 1 of the contract by which the first party agreed to manufacture and sell lum- Der to the second party at certain I sum per thousand feet as fast as load ed on the cars at M. for all lumber | dressed or rough. "and for all dry kiln | lumber shipped by the second party | previous to the erection and operation l of the mill for blaming by the second l party" does not render the contract l incomplete, in that 1t fixes the price 1 for such numbers as might be shipped previous to the erection of the mill; | the phrase previous to the erection | and operation" is limited to the dry kiln lumber shipped, and not to all the | lumber dressed or rough.
 l S. Same; assignment of contract; l provisions for personal service. --The I contract provided that both parties | should have the right to assign the l same, and that the party of the first l part should have nothing to do with l the kiln business It also provided 1 that the party of the first part should 1 turn over to the party of the second part the dry kiln and sheds and other
 appurtenances thereto then in opera | of the second part agreed to furnish
 the steam to dry the lumber; the party
 of the second patr agreed to furnish | his skill and services in making the
 changes necessary for making more steam and in case the kiln should be