The Montgomery advertiser., 1908-09-02

esi eeHehts 70 mortgage, occupying no higher position than an oral agree ment to mortgage personal property, and hence not enforceable because not In writing and signed by the mortga- gor.
 3. Same: definition of mortgage-A mortgage may be defined to be a con veyance or transfer of property. real, personal or mixed, as a security for a debt, or in discharge of some obIiea- tion.
 Appeal from Houston Chancery Court. Heard before Hon. W. L. Parks Affirmed. Opinion by HaraIson, J. Tyson, c. J., and Simpson and Dem son. JJ., concur.
 WAY V. THE STATE. Murder.-(Decided April 9, 1908. 46 South. 273.)
 l. Evidence; opinion: facts or con- clusions-The witness having testi- lied that he had felt hard object on decedent's body or person shortly be- fore the homicide, it was proper to permit him to testify that in his opin- Ion 1t was a pistol.
 2. Homicide; evidence; circumstances preceding act.--Where the theory of the prosecution was that the defendant and another had conspired to kill decedent, or to do some unlawful act in which the killing resulted, and 1t appeared that the decedent, a policeman, had been called to certain house on &C., count of the disorderiy conduct of certain parties, 1t was competent to show by the owner of the house where the killing occurred that just before the killing some boys knocked and kicked upon her door and threatened to break 1t down, etc; all that trans pired at the time of the killing and prior thereto leading up to the killing being competent to be shown. 3. Criminal law: evidence: use Of an alias.-The fact that defendant used an alias. or was known by other names, was competent to be shown.
 4. Evidence: Identification by voice: opinion.-A witness having testified previously that she had talked with accused, and having testified that inl- mediately after the homicide, she saw two persons run by the house where she was. 1t then being dark, and that she heard one of them make an ex- clamation, such witness could testify that, in her opinion, it was the voice of the accused, notwithstanding the fact that she had testified that she did not recognize the voice.
 b 5. Same; order of proof: discretion. Tt was within the discretion of the court to require accused to go on with the examination of his witnesses, ana subsequently, to permit the State to ex- anime witness upon his arrival, the State having announced. when 1t clos- ed it's testimony, that 1t had another witness It desired to examine, upon such witness's arrival.
 G. witnesses; cross examination, character of accused.-A witness for accused having testified to accused's general character and his character for peace and quiet and both were good, it was proper to ask him on cross ex- animation whether people in discuss- ing accused's character, would say some good things and some bad things about him.
 T. Words and phrases; general character; general reputation.-Gener- al character is the same as general reputation and is determined by how a person is generally regarded or es- teemed in the community in which he lives.
 8. Criminal law; character of ac- cused: particular acts. s.--Where one had testified to accused's good char acter, 1t was not permissible to ask whether one guilty of getting drunk and going to disreputable places and lighting would have a good charac- ter, his reputation being the subject of inquiry.
 g. Same; evidence: Identity of ac- cused.-On the question of identifica- tion, it is proper to show how long a witness has known defendant, nvw of- ten and how long he has visited there, and by what name. etc, he was known
 10. Same. hearsay testimony; in- eliminating evidence .--Staternents by another than the defendant. admitting the killing of decedent, were hearsay and inadnissible, nor was the record of the court in a prosecution against such person for the murder of dece- dent competent evidence.
 II. Same; evidence; province of jury. Unless the evidence is so palpably inconclusive as to fail to make out a prima facie case, It's weakness is a question for the jury and not for the court. and if its tendencies at all sup- port the charges made or afford Infer ences to be drawn by the jury in supp port of the charge. it Is properly left to the jury to determine.
 12. Same; instructions covered by instructions given Tt is not error to refuse instructions substantially cov- cred by requested instructions given.
 13. Same; instructions; reasonable doubt.-A charge asserting that if, af- ter @ consideration of all the evidence the evidence of the innocence of &C., cused outweighs or overbalances the evidence of his guilt, the jury should acquit. is bad as requiring san acquit- tai regardless of whether the jury en- certain a reasonable doubt as to the guilt of defendant.
 IA. Same; inapt words.-A charge asserting that If the evidence was reasonably consistent with defendant 8 innocence the jury should promptly acquit him. is properly refused on &C., count of the use therein of the word
 promptly"
 15. Homicide: conspiracy.-If one &C., cused of murder and another went to the house together where the homi- eide occurred. and an offense was com mitted by the other from causes dis connected from the common object of
 their visit, the responsibility for the offense rests on the actual perpetra-
 tor and defendant cannot be convicted because he happened to be present. 16. Same, malice.-H defendant aid cd or abetted in the commission of
 the killing 1t is not essential to de- fendant's guilt that he knew of the existence of malice on the part of the other person.
 IT. Same.-If defendant aided or abetted another in the commission of homicide 1t Is not essential to defend- ants guilt that the other should know
 of such aiding and abetting. IS. Criminal law; argumentative in- | structions.-A charge is argumentative and properly refused which asserts that if the evidence Is reasonably bal anced as to defendants guilt the jury
 should lean to the side of mercy and | acquit him.
 19. Evidence; circumstantial evil | dence; suff1ciency; test.-If the circum- | stances proven are susceptible of ex- planation upon any reasonable hypo- | thesis consistent with defendants in- nocence, then they are insufficient and