The Montgomery advertiser., 1909-03-18

pend upon the circumstances of the particular case under investigation and 10 question for the jury to determine.
 Involuntary manslaughter 10 case of killing where 1t plainly appears that death was not intended, but vas the result of some unlawful act, or the re- suit of some act not strictly unlawful in itself. but done in an unlawful man. ner. and without due cautionA
 Presumpti0ns Of Jury.
 You enter upon this investigation with the presumption that the defend- ant is not guilty of any crime. and tnis presumption stands as witness for him until 1t is rebutted and over turned by competent and credible proof, sufficiently strong to satisfy you ee- yond a reasonable doubt that the de- fendant is guilty of some one of the ofYenses, which have been heretofore defined and explained to you, By reasonable doubt Is not meant that which of possibility may arise, but 1t is that doubt engendered by an | investigation of the whole proof. ana an inability. after such an investiga- ton to let the mind rest easily upon the certainty of guilt. Absolute Ger tainty is not demanded by the law to | convict of any criminal charge put | moral certainty is required
 "The law of self defense Is thus de- fined by our Supreme Court: TO ex- cuse a homicide, the danger of death or great bodily injury must either De real or honestly believed to be so., at the time and upon sufficient grounds. It must be apparent and imminent. Previous threats. and even acts of hos | tility, how violent soever they may be, will not, of themselves. excuse the
 staying. but there must be some words l nt (fhaf n. = fest, perceivable actlSf at the time, clearly indicative of a present purpose | to the jury; and whether there was at the time such an overt act on the part
 of the deceased toward the defend | ants and what would or what would
 not be such overt act on his part is | a matter for you. the jury. to decide
 upon all the circumstances and facts
 shown in the proof of previous friend
 ship or hostility, and all the other sur | roundings of the case
 l Past threats or hostile actions. oI antecedent circumstances. can only bs 1 looked into in connection with the present demonstrations. as grounds oi apprehension on the part of the persor doing the killing. | Question of ADprehension. ITO constitute this defense. the be-
 lief or apprehension of danger must>bt founded on sufficient circumstances tt authorize the opinion that the deadl,
 purpose then existed and the fear tha 1t will at that time be executed.
 l s"The animosity of the deceased
 against the defendants as indicated b,
 words or actions then and before Is proper matter for the consideration O.
 the jury. on the question of reasonabi, | apprehension, and even if sufliiien
 cause does exist for apprehension. bu n hA tc nAk
 fear 1t Is calculated to inspire, or tn, 1 fear is fetgned or pretended. the de
 fense will not be available. So a cas,
 must not only show reasonabl,
 grounds for fear of death, or grea
 bodily harm. but must show that sucl
 fear was entertained and the killins done under an honest and well founded
 belief that 1t was absolutely necessar,
 to kill the deceased at that time [.
 save himself from a like injury or bod lily harm. and these rights of defend
 ing ones person exist and continue s,
 long as the proof shows you that thtl
 danger Is present and imminent, ant
 no longer. or honestly believed to b,
 so. on reasonable grounds.
 Tt is hardly necessary to say tha
 the real or apparent necessity brough
 about by the design, fault or contriv
 ance of the defendants. is no ex
 cuse. but if the fear of less injur.
 than death. or great bodily harm. b indicated by the proof. then the grad of the offense would be lessenet though 1t would be intellectual as sel defense" } Judge Hart next explained the pun . ishment for the different grades c murder. For first degree murder the penalt
 is death. but if there be mitigatin
 circumstances. a recommendation t
 this effect may accompany tho verdic
 The court may or may not reduce th . penalty from death to life imprison ment.
 The penalty for second degree mui ! der Is from ten to twenty years; of vol untary manslaughter. two to ten years
 of involuntary manslaughter. one ' five years. He explained that the jury was tn sole fudge of the law and the fac, and must apply the law to the taot that 1t was the judge of ycrediPility witnesses and that previous good. chai actor was a witness for the defendant and previous bad character affecte their credibility as witnesses.
 Theories of Lawyers.
 This rounded out the statutor charges. which the law provided in a murder cases. and brought the cou down to his instructions as to theorit advanced during the arguments counsel on both sdes. ' "It isa rule of presumpttons th' | ordinarily a witness who testfaes \ an afirmative is to be preferred to oI \ who testifies to a negative. because l who testifies to a negative may ha' forgotten It Is possible ro forget thing that never existed. Where u - witnesses are equally credible, positi' should be given greater weight ths
 negative testimony.
 AW u1