The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1907-04-25

day accused vas charged with the. kill
ing he had been shipping turpentine.
and ON the following day he discarded
his old shoes, and on being asked
where. they were. told third person
OF their whereabouts which third per-
son got one OF them and gave II to this
witness for comparison with the tracks;
and IL was further shown that the
shoe was the ehoe Of defendant. 1t was
proper to allow the witness to be ask
ed II the shoe had crude rosin on 1t
at the time 1t was handed to him.
8. Criminal law: objection to EVIL
dence: manner Of taking.--Without OBJ
jection being interposed thereto a wit
ness was asked q question and an
swered that after the homicide. and
while defendant was being taken to
jail. he saw defendant and asked him
What the trouble was between him
and deceased, and defendant answered
that deceased had been telling tales
on him and he wanted to stop him,
Held, that a motion to exclude same
because not tantamount to a confess
sion, was properly overruled.
h 4, Same; evidence. opinion of wit
ness "A witness may not be permitted
to say whether or not, In his 5udg-
ment, tracks near the scene of the hon.
icide were the tracks of the defend
ant. &
) s. Same; Instructions; reasonable
doubt.-The court charged the jury, on
request, that Ii the evidence. or any
part of It, after a consideration of the
whole of It. generated well founded
doubt of the guilt of the accused. they
must acquit him. It was not error.
then, to refuse charge as follows:
That IL. on consideration of the evil
dence, the jury entertained a reason
able doubt as to the guilt of the ac-
cused, arising out of any part of the
evidence, a verdict Of acdufttal must
be rendered.
6. Same; argument Of prosecuting
attorney: revisable error.-In the alb
sence of any evidence of the fact. 1t
was reversible error to permit the So
licitor, in his closing argument to the
jury, to state that the good ccitizens
OF the community met after the hon.
icide TO ascertain the guilty party, and
the defendant was not there.
Appeal from Clarke Circuit Court.
Heard before Hon. s. H. Sprott.
Reversed and remanded. Opinion by
HARRISON, J.. .t
Tyson, C. J., and Simpson and Dem
son, u. concur.
PAYNE v. THE STATE.
Assault With Intent to Ravish ODE
cided Jan. "a. 1907. ~ So. Rep.
$685.
/. Indictment; lesser offense In
cinded in charge of greater; assault
to ravish.---An indictment charging
the offense of assault with intent to
ravish, included the lesser Offences of
assault and battery, and simple as
sau1t.
@. Criminal law; peremptory In
structions; denial-Where the evidence
was sufficient to Justify a conviction
for assault and battery or simple as
sault, 1t was proper to refuse the af-
firmative charge. or to direct an ac-
ouittal.
3. Rape; assault to: evidence.--Evi-
dence In this case examined. and held,
to justify the finding that defendant
was guilty of assault with intent to
ravish.
4. Criminal law: Instructions An
instruction which fails to hypothesize
all the facts upon which 1t Is based.
or which tends to vary or impair the
force of the testimony upon which 1T
Is based, is properly refused.
s. Same; appeal; review; new trial.
The denial OF a motion for new
trial in a criminal case is not review
able on appeal.
Appeal from Butler Circuit Court.