utation for chastity and truth are bad, convict of rape, if they believe beyond a reasonable doubt the testimony of the prosecutrix, in the present case the court was not authorized, as a matter of law, to say to the jury that the testimony of the prosecutrix was uncorroborated. 5. For the reasons given in sections 3 and 4 of this opinion, the court committed no error in refusing to give to the jury the first, second, and fourth charges requested in writing by the defendant. [11] The third charge requested by the defendant, which the court refused to give, states, as applied to the evidence in this case, a correct proposition of law, but it singles out a part of the evidence, and belongs to that class of charges which a trial | court may or may not, in the exercise of its discretion, give to a jury. [ficulty, since if he provoked it he could not [Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 614-632; Dec. Dig. § 300.*] Appeal from Circuit Court, Elmore County; W. W. Pearson, Judge. Theophilus Eubanks was convicted of first degree manslaughter, and he appeals. Af firmed. The facts sufficiently appear in the opinion of the court. The following charge was refused of the defendant: "The court charges the jury that, in cases of this kind when the defense is self-defense, the burden is on the state to prove to you beyond a reasonable doubt that the defendant was the aggressor and provoked the difficulty, before he can be deprived of his plea of self-defense." It follows, therefore, that the record fails L. A. Sanderson and J. Monroe Holley, for to show any error in the trial of the defendant in the court below, and that the judg-H. Seay, Asst. Atty. Gen., for the State. appellant. R. C. Brickell, Atty. Gen., and T. ment of the court below must be affirmed. Affirmed. (2 Ala. App. 61) EUBANKS v. STATE. (Appellate Court of Alabama. June 15, 1911.) 1. CRIMINAL LAW (§ 1169*)—APPEAL-HARMLESS ERROR ADMISSION OF EVIDENCE PREJUDICIAL EFFECT. In a prosecution for killing decedent, who was paying attention to the same woman that accused was, evidence that a note was brought to the witness on the day before the killing which was in the woman's handwriting could not have prejudiced accused so as to make its admission reversible error, where it appeared that the note was written for another woman to witness, and that it did not concern or mention accused or decedent. WALKER, P. J. It was not controverted, in the trial of this case, that the appellant killed Jessie Ryan by shooting him with a pistol on the premises of Pete Montgomery, also known as Pete Dorsey, where the deThere was ceased was living at the time. evidence tending to show that tue deceased was interested in Cozy Dorsey, a daughter of Pete Dorsey, who lived at the same house, and who testified that she and the deceased were "mighty good friends," and that she was cooking for him; that the defendant had recently begun to pay attentions to the same woman, and that one result of this situation was the existence of a feeling of jealousy or ill will between the two men. The killing [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 3137-3143; Dec. Dig. § occurred in the course of a fight between 1169.*] 2. CRIMINAL LAW (§ 761*) — INSTRUCTIONS COMMENT ON FACTS. Where it was admitted that accused killed decedent with a pistol, it was not improper to state in the charge that it appeared from the evidence that accused must set up something by way of justification if he would show that he was guiltless. them on the occasion of a visit of the defendant at the house mentioned. The defendant came there armed with the pistol from which he fired the fatal shot. While the defendant was at that place in the company of the woman mentioned, the deceased left the house, but a short time afterwards came back, carrying a large stick and also havSoon after his [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1731-1771; Dec. Dig. §ing a pistol on his person. 761;* Homicide, Cent. Dig. §§ 582, 599, 607.] 3. CRIMINAL LAW (§ 7552*)-INSTRUCTIONSSTATING ISSUES. It is not improper to point out to the jury in a homicide case the facts which are in issue. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1731-1765; Dec. Dig. 7552.*] return to the house the fight between the two men started, the evidence tending to show that the deceased struck the first blow. Plush Martin, a witness for the state, who [1] In the course of the examination of seems to have been a friend of the defendant, the two having visited Pete Dorsey's 4. HOMICIDE (§ 300*) — Instructions — SelF-house together the night before the killing, DEFENSE. A requested charge in a homicide case, where the issue was self-defense, that when the defense was self-defense, the state must prove beyond reasonable doubt that accused was the aggressor and provoked the difficulty, in order to deprive him of his plea of self-defense, was properly refused, as ignoring the question of accused's freedom from fault in provoking the dif he testified, without objection on the part of the defendant, that a note was brought to him on the day before the killing which, there was evidence tending to show, was written by Cozy Dorsey. The bill of exceptions does not show that the defendant excepted to any action of the court in admit ting testimony in reference to that note, | voking that difficulty. The charge may be which the court allowed to remain before subject to other criticism. the jury for their consideration. Besides, it was subsequently proved without contradiction that the note inquired about, though written by Cozy Dorsey, was the note of another woman to the witness Plush Martin, and that there was nothing in it about the defendant or the deceased-their names not being mentioned. It affirmatively appears that the reference in the testimony to that circumstance could not have prejudiced the defendant, and would not have constituted a ground of reversal if the overruling of the objections made had been followed by appropriate exceptions. Fowler v. State, 155 Ala. 21, 45 South. 913; Hill v. State, 146 Ala. 51, 41 South. 621; Code 1907, § 6264. [2] It being an admitted fact in the case, as stated in substance by the court in the course of its oral charge, that the defendant killed the deceased by shooting him with a pistol, there was no impropriety in the statement subsequently made in such charge that "it appears from the evidence in the case that the defendant here must set up something by way of justification if he would show that he is guiltless." Gibson v. State, 89 Ala. 121, 8 South. 98, 18 Am. St. Rep. 96. It is not true, as contended by the counsel for the defendant, that it was a necessary inference from the evidence offered against the defendant to prove the homicide that he was under a pressing necessity to take life in self-defense. On the contrary, the evidence afforded grounds for the inferences that the defendant was not free from fault in provoking or bringing on the difficulty; that he made no attempt to retreat or to avoid the difficulty; and that there was an absence of necessity for him to kill the deceased in order to defend himself. The objection to the part of the oral charge in which the court undertook to state the theory of the prosecution as to the tendencies of the evidence is untenable. The court did not there misstate the tendencies of the evidence. The tendencies of the evidence favorable to the defense were in like manner stated in the charge. [3] There was no impropriety in thus pointing out to the jury the facts in issue. Hawes v. State, 88 Ala. 37, 7 South. 302. It follows from what already has been said as to the tendencies of the evidence in the case that there was no error in the re fusal to give the general affirmative charge requested by the defendant. [4] Charge 6 requested by the defendant was properly refused. It ignored the inquiry as to the defendant's freedom from fault in provoking or bringing on the difficulty. If he was so at fault, he was not entitled to claim self-defense, though the deceased was the aggressor in the fight which resulted fatally to him, and also was in fault in pro Affirmed. (2 Ala. App. 38) LUNSFORD v. STATE. (Appellate Court of Alabama. June 30, 1911.) 1. CRIMINAL LAW ( 364*)-EVIDENCE-RES GESTÆ. Evidence of declarations made by accused two minutes after the shooting, and after he had gone into a house, as to how the shooting occurred was properly excluded as being too remote from the occurrence to constitute part of the res gestæ. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 817; Dec. Dig. § 364.*] 2. HOMICIDE (§ 300*) — INSTRUCTIONS - SELFDEFENSE. fused as being abstract, where there is no eviInstructions on self-defense are properly redence tending to show killing in self-defense. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.*] 3. CRIMINAL LAW (§ 829*) — INSTRUCTIONS REFUSAL-MATTER COVERED. given is properly refused. An instruction substantially covered by one [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 2011; Dec. Dig. § 829.*] 4. HOMICIDE (§ 125*)-RESPONSIBILITY — AC CIDENT. If a homicide, caused by accused, was prehis unlawful act in following decedent with the ceded by, resulted from, or was an incident of, loaded gun with which decedent was killed, he might be convicted of an offense embraced by the indictment, though the homicide was accidental and partly due to decedent's own fault. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 189, 190; Dec. Dig. § 125.*] Appeal from Circuit Court, Hale County; B. M. Miller, Judge. W. G. Lunsford was convicted of an offense, and he appeals. Affirmed. R. B. Evins, for appellant. R. C. Brickell, Atty. Gen., for the State. WALKER, P. J. The deceased, Frank Lewis, was a negro youth, about 19 years of age, who was employed by the defendant as a laborer or servant. He was engaged in service about the defendant's residence. That he came to his death as the result of a shot fired from a gun in the hands of the defendant is a fact about which there was no dispute in the trial. The conflict in the evidence was as to the circumstances of the shooting. The evidence offered by the prosecution was to the effect that the deceased ran out of the defendant's residence; that he was followed by the defendant, who had the gun in his hand; that the defendant called to the deceased to come back, and shot him when he was about 10 feet away. The version of the affair given by Mrs. Ellen Knowlen, the principal witness for the defendant, was as follows: "The first I knew of any difficulty, Mr. Lunsford was sitting in his dining room, which opens on the back porch. Frank came up on the porch, and said, 'Have you got any money?' Mr. Lunsford said, 'Yes; I generally have a little; why? Frank said, 'I want some.' Mr. Luns ford said, 'Where did you get those eggs from?' Frank replied in an insolent manner: 'It's none of your business. Other people have eggs besides you.' Mr. Lunsford said: 'All right; we will go and look at them, and see whose they are.' Frank said, 'It's none of your business whose eggs they are, and I won't show you.' Mr. Lunsford reached over towards a gun in a corner, and Frank ran out into the yard. Mr. Lunsford came out on the porch with the gun in his hand, hanging down by his side, and walked down on the ground, and said, 'Come back, and go with me to see those eggs.' Frank came back towards him, and Mr. Lunsford slightly turned to go in the direction of Frank's house, where the eggs were. Frank was approaching him, and as he neared him he in an angry manner leaped towards Mr. Lunsford and grabbed at the gun. As he did so, Mr. Lunsford jumped back, and said: 'Don't touch this gun; keep your hands off this gun.' Frank grabbed for the gun again, and caught it by the barrel; Mr. Lunsford holding it by the stock. As he grabbed the gun, Mr. Lunsford said: "Turn this gun loose; don't try to take this gun.' As Frank grabbed the gun, I ran back into the house, and heard the gun. Seeing Frank grab the gun, hearing Mr. Lunsford tell him to turn it loose, and hearing the report of the gun were almost simultaneous. A second or two later, from the front door, to which I had run, I saw Frank walking through the front yard, with blood running down his leg. * I went with Mr. Lunsford after the shooting to where Frank Lewis was sitting, on the side of the road, just outside Mr. Lunsford's front gate. The said Frank said, 'Mr. Will, I didn't think you were going to shoot me,' to which the defendant replied: 'I did not intend to shoot you, Frank; you made me by jerking the gun.' The defendant appeared very much distressed." No witness for the defendant testified to seeing the parties at the time the shot was fired. [1] On cross-examination of one of the witnesses for the state, and on the direct examination of a witness for the defendant, his counsel asked questions whereby he sought to elicit proof that defendant, "within two minutes after the shooting, ran into the house and stated to members of his family that he had unintentionally shot Frank Lewis, and asked them for God's sake to help him save his life;" also of defendant's efforts, after he had been to the house, to stop the flow of blood from the wound inflicted on the deceased; also that defendant, after the shooting, "within a minute or two thereafter," ran into the house, and said, "I have shot Frank Lewis; he did it grabbing the gun;" also that the defendant, to send for a doctor to attend the deceased; and also that Mrs. Knowlen, when she saw the deceased walking through the front yard immediately after the shooting, exclaimed, "Thank God, it was the negro, and not Will.” Exceptions were duly reserved by the defendant to the action of the court in sustaining objections interposed to the questions just referred to. It is insisted in the argument of the counsel for the appellant that the court was in error in excluding proof of the above-mentioned acts and declarations subsequent to the shooting. It is urged that those acts and declarations constituted part of the res gestæ, and as such could properly be proved. In this view we cannot concur. Under the rulings in this state, such declarations or acts, so separate in point of time and place from the main transaction which is the subject of investigation, are not to be regarded as parts of that transaction. Pitts v. State, 140 Ala. 70, 37 South. 101; Nelson v. State, 130 Ala. 83, 30 South. 728; Harkness v. State, 129 Ala. 71, 30 South. 73; Hill v. State, 156 Ala. 3, 46 South. 864. Frequently it is a matter of difficulty to determine whether acts or declarations of one of the parties to a transaction, not strictly coincident with the central fact of the occurrence, are so related to it as to illustrate or explain it and to be in reality parts of the one transaction, or stand apart from it as subsequent events. In considering whether certain declarations which had been offered in evidence were to be regarded in the one light or the other, it was said, in the opinion in the case of Nelson v. State, supra: "And this depends upon whether the circumstances are such as that it may with reasonable certainty be affirmed that the declarations were produced by and instinctive upon the occurrence to which they relate, rather than a retrospective narration of them." In that case the proof, which was held to be admissible, was of a declaration in regard to a fatal difficulty made by one of the parties to it, and the ground upon which it was held to be admissible was that, though it was made after the fatal shot was fired, yet, as the difficulty was to be regarded as still in progress at the time, what was said in the course of it should be considered as really a part of the transaction. Not so in the case at bar. At the time of the declarations and acts here sought to be proved, the shooting in question was a thing of the past. One of the parties had gone one way; the other another. They were no longer in the presence of each other. The incident was closed. The court could not say with reasonable certainty that the declarations and acts sought to be proved were the unpremeditated results of what had happened between the deceased and the defendant, rather than the results of a subsequent design on the part of the defendant, quickly formed when to give the occurrence an aspect favorable | [2] We are unable to discover any evidence to himself and to minimize as far as pos- in this record having a tendency to prove sible its disastrous consequences. The ques- that the shooting was a voluntary act on tion of the admissibility of the proposed the part of the defendant done in self-deproof was one for the court. It could not fense. The evidence offered by the state was be put in error because of its action in to the effect that the shooting was under excluding it, unless this court would be justi- circumstances which wholly precluded any fied in affirming that it appears with reason- claim on behalf of the defendant that it able certainty that the declarations and was done in self-defense. The tendency of acts sought to be proved were spontaneous the evidence introduced in behalf of the deand unpremeditated accompaniments of the fendant was to prove that the shooting was main facts of the occurrence, explanatory of the result of the deceased grabbing or jerkthe conduct and purposes of the participants, | ing the gun, and was not at all attributable and that, for lack of sufficient time to af- to a purpose or intention on the part of ford an opportunity for thought or deliberation, they could not be attributed to subsequently formed motives or purposes. It would involve a failure to recognize as a fact the wonderful alertness of the human mind, under the quickening influence of exciting incidents, to plan and put into execution means of self-defense, whether against physical violence or an actual or expected incriminating charge or imputation, to say that one who had shot another could not within a much shorter period than two minutes conceive, on withdrawing from the scene, the purpose of putting the affair in a light most favorable to himself, and also be prompted by a hasty repentance to adopt prompt means of averting a possibly fatal consequence of his act. The acts and declarations of the defendant subsequent to the shooting, which were proposed to be proved, were properly excluded, because it could not with reasonable certainty be affirmed that they were spontaneous, unpremeditated, proximate results of the occurrence of which the shooting was the culminating incident, and that they could not have been attributable to motives or impulses on the part of the defendant afterwards coming into play. Subsequent acts or declarations of a participant in an occurrence are not lightly to be declared integral parts of it, pertinent on an inquiry as to its real nature or character, as shedding light upon the influences which were controlling in bringing to pass what was done, where they may as well be traced to an origin, in whole or in part, in thoughts or feelings arising on and after contemplation of or reflection about what already had happened, as to the incentives to which the conduct of such participant which is under consideration may be attributable. Declarations the proof of which should be excluded under the rule against hearsay testimony are not to be permitted to slip in under a false guise of forming a constituent part of something that had gone before. The exclamation of Mrs. Knowlen, sought to be proved, amounted to a mere comment by an outsider on the occurrence after it had happened, and could not possibly shed any light on the past acts or purposes of the participants. That proposed proof also was the defendant to shoot the deceased. In the most pointed and unequivocal manner, the defendant, by the evidence he introduced and also by his offers of proof which the court excluded, made plain his purpose to disclose the occurrence in question to the court and jury under such an aspect as to exclude an inference that the shooting was in any sense a voluntary and intentional act on his part. There was no hint in the evidence of a claim on the part of the defendant that the fact was that he intentionally shot the deceased, but that his act in so doing was excusable, because it was really or apparently necessary for the defense of himself. Charges dealing with the law of self-defense may properly be refused as abstract in a homicide case from which there is absent any evidence tending to prove the existence of a state of facts upon which the defendant could legally base a claim that the killing was in self-defense. Thomas v. State, 150 Ala. 31, 43 South. 371; Handy v. State, 121 Ala. 13, 25 South. 1023; Lewis v. State, 96 Ala. 6, 11 South. 259, 38 Am. St. Rep. 75; Anderson v. State, 160 Ala. 79, 49 South. 460. The law of self-defense is not applicable in a case of a killing resulting from an act which was accidental and unintentional. The defendant made the issue in this case one between an intentional killing, under circumstances precluding any claim of self-defense, and a killing resulting from a shot unintentionally fired from a gun in his hands. Charges 1, 2, 6, 13, and 14, refused to the defendant, were instructions as to the law of self-defense. They were not applicable to any phase of the evidence, and the court is not to be put in error because of its refusal to give them. [3] The propositions asserted in charge 19, refused to the defendant, were fully covered by other written charges given at his instance, and he could not have been prejudiced by the refusal of the court to reiterate in slightly varying phraseology propositions already stated to the jury in writing. [4] The defendant's written charge 20 was properly refused, because it predicated a right of acquittal upon the facts there hypothesized. The charge was calculated improperly to confine the attention of the jury to the exact time when the shooting took In a homicide case, evidence of decedent's general character was inadmissible. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. § 163.*] 8. WITNESSES (§ 321*)-CREDIBILITY PEACHING ONE'S OWN WITNESS. - IM that it was preceded by, resulted from, or | 7. HOMICIDE (§ 163*)-EVIDENCE-DECEDENT'S CHARACTER. was an incident of, an unlawful act of the defendant in following the deceased with a loaded gun, they would have been justified in convicting him of an offense embraced in the indictment, though they found from the evidence that the death of the deceased was unintentional or accidental, and that it was in a measure due to his own fault. Barnes v. State, 134 Ala. 36, 32 South. 670; Thompson v. State, 131 Ala. 18, 31 South. 725; White v. State, 107 Ala. 132, 18 South. 226; Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42. Affirmed. DE GRAFFENRIED, J., not sitting. (2 Ala. App. 25) MONTGOMERY v. STATE. (Appellate Court of Alabama. June 30, 1911.) 1. HOMICIDE (§ 192*)—EVIDENCE-DECEDENT'S PREVIOUS ACTS. The state could show what decedent was doing and saying when accused went into the house where the trouble started, as tending to show who was the aggressor. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 415; Dec. Dig. § 192.*] 2. HOMICIDE (§ 163*)-EVIDENCE-IRRELEVANT FACTS. In a homicide case whether decedent or any one else was connected with making whisky which parties drank was irrelevant. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. § 163.*] 3. CRIMINAL LAW (§ 351*) - EVIDENCE OF FLIGHT-ADMISSIBILITY. The state could show that when accused was arrested, several days after the offense and after he had been unsuccessfully sought, the address of one living in Texas was found on his person, as tending to show flight as a consciousness of guilt. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 779; Dec. Dig. § 351.*] 4. CRIMINAL LAW (§ 741*)—PROVINCE OF JU RY-WEIGHT OF EVIDence. The weight of the evidence is for the jury. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1713; Dec. Dig. § 741.*] 5. CRIMINAL LAW (§ 396*)—EVIDENCE-CON VERSATIONS. Accused having brought out part of a conversation between witness and others, the state could show all. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. § 396.*] 6. CRIMINAL LAW (§ 390*)-EVIDENCE-STATE OF MIND. Questions asked a witness as to whether he "considered" another person truthful, what he "meant" by certain statements as to telling the truth, and "why" he wanted to do a certain thing, were properly excluded, as calling for the witness' motives, uncommunicated intention, and state of mind. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 858; Dec. Dig. § 390.*] Accused was properly prevented from showing that a witness who testified at a former trial was introduced and examined as a state's witness on that trial (following Neilson v. State, 40 South. 221; Glass v. State, 147 Ala. 50, 41 South. 727). Cent. Dig. 88 1094, 1099, 1100; Dec. Dig. 9. WITNESSES (§ 242*) — EXAMINATION It is improper to prompt a witness on direct examination by reading his former testimony to him. [Ed. Note. For other cases, see Witnesses, Cent. Dig. $ 795, 846; Dec. Dig. § 242.*] 10. CRIMINAL LAW (§ 413*) — SELF-SERVING DECLARATIONS. Evidence of self-serving declarations by accused is properly excluded; all the declarations constituting part of the res gestæ being admitted. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.*] 11. HOMICIDE (§ 174*)-EVIDENCE-DECLARA TIONS OF ACCUSED. In a homicide case, it was proper to exclude a showing that accused told witness he wanted him to inform the neighbors of the killing; the only issue being whether accused acted in self-defense. Cent. Dig. §§ 367, 368; Dec. Dig. § 174.*] The state was properly permitted to ask accused's witnesses concerning their testimony on a former trial, to contradict them or to test their recollection. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1252-1256; Dec. Dig. § 379.*] 13. HOMICIDE (§ 163*) — EVIDENCE — ImmaTERIAL FACTS. In a homicide case, it was proper to exclude evidence as to where the whisky came from the parties were drinking, who operated whether witness or others were concerned in or owned the still where it was made, and making whisky, or running an illicit still. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. § 163.*] 14. HOMICIDE (§ 163*) - EVIDENCE- DECEDENT'S DANGEROUS CHARACTER. Decedent's specific acts in the past to show his character as a dangerous or turbulent man were inadmissible. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 317; Dec. Dig. § 163.*] 15. CRIMINAL LAW (§ 351*)-EVIDENCE-EX PLANATION OF FLIGHT. |