The Montgomery advertiser., 1907-04-28

dence.--Where the court permitted 9 witness to testify that defendant had said there was going to be trouble about there some day, and 1t was shown by the same witness. on cross examination, that such statement had reference to people getting on the train at that point, drtnking and cut ting up, and no special reference to defendant, the statement objected to : should have been stricken out.
 8. Same; instructions; credibility of witnesses-A charge asserting that the interest the defendant has Tn the case may be weighed by tne jury when considering defendants testimony, IS proper.
 4 Homicide; assault with intent; self defense: instructions.-A charge asserting that althouat the jury find that at the time of the assault. defen- he entered into the difficulty willingC and was not without fault in bringing
 1t on. he could not avail himself of
 a plea of self defense, is correct.
 5. Criminal law; reasonable doubt; instructions.-A doubt to justify an acquittal, must be reasonable, must be an actual and substantial doubt, not a mere possibility or speculation. A reasonable doubt is not a mere pos sible doubt. because most things rel ative to human taffairs and depending
 on moral evidence, are open to some
 imaginary or possible doubt Both
 these are correct propositions of law.
 G. Homicide: assault with intent;
 instructions; intent-In eases of as-
 sault with intent to take life, the law
 presumes malice from the use of a deadly weapon. and the onus of re-
 polling the presumption is on tine de- fendant, unless the evidence which proves the assault raises the presump- tion that the assault was perpetrated without malice, and whenever malice is shown, and is unrebutted by the circumstances. of the assault, or by other facts in evidence, there can be no conviction for any less offense than assault with intent to murder. This pretermits an intent on the part of defendant to take life and is erron- eous.
 T. Same: self defense: apparent danger; duty to retreat; Instructions. Tt Is not necessary that there be actual danger to justify the taking of
 human life, but if the jury are satis- fled that the circumstances were such as to impress the defendant with a reasonable belief that the cutting was
 necessary to prevent death or great
 bodily harm to himself, then the jury
 may acquit him. unless they believe he was not Tree from 1auls m prlnB- ing on the difficulty. This charge is erroneous in pretermitting defendants duty to retreat if he could do go with out increasing his peril
 8. Criminal law; confused anstruc-
 tions.--A charge which refers to the person cut as the deceased" where there was no evidence of any death
 and where the person assaulted testi- fled. Is confused and properly refused 9. Homicide; self defense; freedom from fault burden of proof; fnstruc- tions.-A charge that under the evil dence, the burden is on the State to
 show that the defendant was hot free from fault in bringing on the difficult ty, assumes that defendant has shown that he was in imminent peril of life or great bodily harm and could not
 retreat without increasing his danger The burden Is not on the State until | such facts are shown by defendant, and in this case, it was question for
 the jury whether he had shown such | facts.
 Appeal from walker Law and Equity i Court. Heard before Hon. T. L.. Sowell. Reversed and remanded. Opinion bS | Anderson, J. fE
 Tyson. c. J., Dowdell and Mcclellan | JJ.. concur.