The Montgomery advertiser., 1907-03-18

son, d., who dissents as 10 the last point.
 HAMMERS V. THE STATE. Murder--( Decided July 6, i906--41 So.
 Rep. s7s.)
 l.. Jnry; list; preparation--A special or other jury venire drawn from a box that contained the names of resident citizens of only portion of the county is fatally defective, under Section 1882. Code 1896.
 g. Criminal law; conversation of con- spirators: admissibility = Conversations had between defendant and two other persons. immediately before the killing. tending to show a conspiracy between the parties to the conversation to kill the deceased, or to do him great bodily harm, is admissible in evidence.
 g. Witness; bias--When a witness for the defendant denied making threats against the deceased, and stated that he and deceased were on friendly witness had made threats against de- ceased, although made sometime before the killing. as tending to show his feel- ings for deceased and his bias towards defendant.
 {. Criminal law; trial evidence--E Ev- idence incompetent when offered is cured of error if 1t Is afterwards rem dered competent.
 D.. Same; limitation of evidence; duty of defendant to request imitation Where certain evidence is admissible for a particular purpose only. if de- fendant desired that 1t should be lim- ited to that purpose, he should ask in- structions from the court to the jury-as to such limitation.
 S.. Same; trial; argument of counsel --Defandants counsel. in argument. -l..~ a-Nr a mt..--A was never indicted. and why the State had not produced him. Replying, the Solicitor said that If anyone was ex- pected to produce such co-conspirator, 1t was the defendant. as they were on' friendly terms and 1t would be easier for the defendant and the co-conspira- tor to prove 1t if no conspiracy existed. Held. that while the remarks of de- fendant's attorney were improper and could have been excluded, 1t was not error to exclude the reply thereto, on the theory that illegal evidence may be rehutted by evidence of the same character.
 '. Homicide; instructions--A charge fnstructing the jury that if deceased accused defendant of meddiing with or encouraging the difficulty between de- ceased and another, then defendant had the right to deny such accusation, if 1t HGkS lHlbcs III no ufCeEIAln lSEiESe ana that if deceased and another were hav- ing a difficulty the day deceased was killed, and deceased accused defendant of encouraging the same. it was de- fendant's duty to emphatically deny such accusation, and that to have been accused of it and not to have denied it would have been a circumstance against him. was properly refused as tending to create in the minds of the a4r ra~r kAA 1~~ zA f tied, as a matter of law, to deny the accusation in such manner as to pro- yoke or encourage the difficulty which ensued between them.
 3. Criminal law; province of jury Charges asserting that the evidence fails to show a conspiracy between de- fendant and certain others to take de- ceased's life: and if the jury believe the evidence. defendant could not be con ed into conspiracy, are invasive of the province of the jury and are proper ly refused.
 9. Same: instructions as to evil denee--A charge asserting that the ev- idence of a witness taken on prelimin- ary examination was not the evidence the jury should consider as his on this trial burt the jury should take the writ ten showing signed by defendant as be-
  give. if present. and give it the same weight as if the witness had testified on the stand in effect excluded a DOT tion Of the evidence from the consider ation of the jury and was properly re- fused.
 10, Homicidei instructions: freedom from fault-A charge onS self defense which pretermits consideration of de- fendant's freedom from fault in pro ducing the necessity to take deceased'a life and of defendants duty to re- treat, Is properly refused.
 II. Same; co-defendants: misleading eharges-Where there were tendencies in the evidence to show a conspiracy between defendant and another, charge of asserting that defendant cound not be convicted unless tho evidence estah- lished his guilt independent of the other beyond all reasonable doubt was misleading and properly refused.
 Appeal from Clay Circuit Court.
 Heard before Hon. John Pelham
 Affirmed. Opinion by Tyson. J.
 Weakley. c. J. Simpson and Ander- son. III c1ncur