(100 So.) reopen the orders and decrees in the case of Jenkins v. Belt are: (1) The recital in the pro confesso decree that the defendants "have been cited to appear at the present term of this court, by publication, made according to law, and the order of publication sent by mail to their place of residence in the state of Georgia, as required by law," is false and that no legal publication for the defendants was in fact made; (2) that the balance due Jenkins by Belt on the purchase of the land was paid by Belt's administratrix after the rendition of the decree for the sale of the land and before the sale thereunder was made; (3) that the same person, D. M. White, clerk of the court, was appointed both as guardian ad litem of the minor defendants and as commissioner to sell the land; (4) the sale of the land was in fact made not by White, who was appointed as commissioner for that purpose, but by his deputy clerk, Nicholetts; (5) the price brought by the land at the sale was wholly inadequate; (6) that Mrs. Belt was disqualified to purchase the land because she was the executrix of the estate of L. Carlton Belt of which estate the land was a part. In support of the allegation of the bill that publication was not made for the defendants in the case of Jenkins v. Belt, the minutes of the court below covering the period during which the cause was pending, most of which were made exhibits to the bill, were introduced in evidence, and there appears therein in addition to the orders and decrees hereinbefore referred to an order in the clerk's vacation minutes reading as follows: "Order taken at rules, third Monday of October, 1870, Margaret Jenkins, Administratrix, v. Elizabeth T. Belt. "On opening the bill in this cause it appearing that the defendants are nonresidents of this state and are citizens of the state of Georgia, and of the city of Augusta, it is therefore ordered that notice be published in the Tallahatchie News, a weekly paper published in the town of Charleston, in Tallahatchie county, for four consecutive weeks, to appear at the next November term of the chancery court for said county to plead, answer or demur to the said bill of complaint, or same will be taken for confessed, and it is further ordered that a copy of this order be sent by mail, according to law, to said defendants, directed to them at said city of Augusta, in said state of Georgia." This order was not signed by the clerk, was not confirmed by the court in term time, is in the handwriting of the complainant's solicitor in the case of Jenkins v. Belt, and the order preceding it, and the one immediately following are both dated during the month of September. All of the other vacation orders of that period appear in the handwriting of the clerk or signed by him, and seem to have been acted on by the court in term time. The vacation minutes of the clerk contain several blank spaces and one 100 SO.-13 entire blank page. This order does not appear in the final record made by the clerk of the proceeding in the case. It was not made an exhibit to the bill, and consequently was not before the court on the former appeal herein. There is no copy of the publication for the defendants in the case of Jenkins v. Belt in the file thereof, but there is therein a proof of publication by the printers and a receipt for their fees therefor. On December 7, 1870, the clerk of the court below made and filed the following affidavit: "Margaret Jenkins, Adm'x, v. Elizabeth T. Belt et al. "This day personally appeared in open court D. M. White, clerk of this court, who makes oath as required by the rule of this court that he forwarded by mail as required by law to the defendants in the above cause at their stated residence, Augusta, Georgia, the order of publication taken at rules at the above cause. "[Signed, D. M. White. "Sworn to and subscribed before me this the 7th day of December, 1870. "[Signed] J. F. Simmons." The statute in force when this case was pending is as follows; "When it shall be made to appear to the satthat any defendant to a suit in chancery, is out isfaction of the judge, by affidavit or otherwise, of the state, or a nonresident thereof, or cannot, upon due inquiry, be found therein, an order may be made directing such defendant to appear, and plead, answer or demur, to the complainant's bill, at a certain day therein to be named, being a return day of the court, not less than two nor more than six months after the date of the order, which order shall, within twenty days thereafter, be personally served on such defendant by delivery of a copy thereof to him, or be published in one of the public newspapers of this state, designated in such order, for four weeks successively, at least once in each week; and such order shall also be served, or published, in such other manner as may be therein directed. Such orders of publication may also be entered at rules to be held in the clerk's office, subject to the control of the court," etc. Rev. Code 1857, c. 62, art. 34. An amendment to this statute provides: "That it shall not be necessary to take orders of publication for absent or nonresident defendants, before the clerks at rules, but the same may be taken at any time in the office, before the clerk, whether the same be at rules or not; and the order, when so taken, shall be entered on the minutes by the clerk, subject to the control of the court;" etc. (Laws 1867, c. 294.) On this evidence the contention of the ap pellant is that no publication was in fact made, and, if made, was not made pursuant to a valid order therefor, the order purporting to have been made by the clerk therefor having been in fact entered on the minutes without authority so to do. Assuming, as was held on the former appeal, that this is a direct and not a collateral attack on the decree in the case of Jenkins (true that the relief here sought is both the v. Belt, the recital in the order hereinbefore annulment of the orders and decrees under set out that publication for the defendants which the land was sold and the recovery of in that case had been in fact made is not the possession of the land. But the joinder conclusive, but the burden of showing its of the two in one suit cannot affect the time falsity is on the appellees, the complainants within which a suit to annul the orders and in the court below, and it must be accepted decrees must be brought. Brooks v. Spann, as true unless the evidence to the contrary 63 Miss. 198. is clear and convincing. The absence of the clerk's signature to the order for publication is not material as his signature thereto was not required by the statute, and, while the facts hereinbefore set forth may be sufficient to arrest attention and cast doubt upon the validity of the order, they are wholly insufficient to overthrow it after the lapse of half a century and in the face of the, solemn adJudication of the court that the defendants "have been cited to appear at the present term of this court by publication made according to law and the order of publication sent by mail to their residence." That recital not being proven to be false must be While we have no statute specifically preaccepted as true, from which it follows that scribing the time within which a suit to anthe court acquired jurisdiction of the defend- nul a decree must be brought, the court by ants, and consequently the decrees rendered analogy will limit the time therefor to the pursuant thereto must remain in force un-time prescribed by the statutes for bills of less they can be set aside on some other review, appeals to this court, and similar ground. Our holding that publication was made for the defendants in the case of Jenkins v. Belt disposes of the objection here raised to the validity of the decree therein rendered for the sale of the land, so that we come now to the objections raised to the validity of the subsequent orders and decrees therein made. On the former appeal herein it was held that the other alleged defects in the orders and decrees in the case of Jenkins v. Belt are not such as would render them void, but voidable only, 125 Miss. at page 390, 87 South. 666, so that at the threshold of the appellees' case lie these orders and decrees which must be set aside before any question can arise as to whether or not the appellees are otherwise barred from recovering the land. The first question that presents itself in this connection is: Are the appellees barred by the lapse of time from obtaining a suit to annul these orders and decrees? In determining this question the fact that the appellees' right under the will of L. Carlton Belt to the possession of the land may not have accrued until the death of Mrs. Elizabeth T. Belt in 1917 is of no consequence, for their right to annul these orders and decrees is in no wise dependent on their right to the possession of the land, or rather upon the time when that right may have accrued. What was said in this connection on the former appeal was there material, for it then appeared from the allegations of the bill that publication for the defendants in Jenkins v. Belt had not been made, which, if true, would have resulted in all of the orders and In deciding the question now under consideration we will leave out of view section 1265, Code of 1871, which now appears as section 646, Code of 1906 (section 408, Hemingway's Code), and also the effect, if any, of the failure of the minor defendants to appeal the case of Jenkins v. Belt to this court within the time allowed them therefor after attaining their majority by section 2161, Code of 1871, which now appears as chapter 222, Laws of 1916 (Hemingway's Code, § 2476). If either of these statutes apply here, the appellees cannot of course maintain this suit. proceedings. The longest period of time within which proceedings to reopen a decree can be begun is that provided for a bill of review and is the period that must control here. Brooks v. Spann, 63 Miss. 198; Metcalfe v. Perry, 66 Miss. 68, 5 South. 232. That period under the present statute (section 3111, Code of 1906; Hemingway's Code, § 2475) is two years from the rendition of the decree saving to minors a like period after attaining their majority. [4] Conceding for the sake of the argument that concealed fraud is here charged, the rule thereby sought to be invoked, that the limitation on the right to bring a suit to annul a decree commences only when the fraud on which the suit is predicated is or ought to have been discovered, cannot apply here, for defendants in the cause in which the orders and decrees here sought to be annulled were rendered were dead when the cause in which the decree here appealed from was rendered was tried in the court below, and it does not appear from the evidence that they did not know of the matters on which the charge of fraud is predicated. Moreover the rule of concealed fraud cannot apply to those things that were here openly done or which appear of record. Thornton v. City of Natchez, 88 Miss. 1, 41 South. 498; Norris v. Haggin, 136 U. S. 386, 10 Sup. Ct. 942, 34 L. Ed. 424. This disposes of all of the grounds on which the orders and decrees rendered in Jenkins v. Belt are sought to be annulled except that when Mrs. Belt purchased the land at the sale she was the executrix of the will of her husband, L. Carlton Belt, by (100 So.) set out. What has just been said applies to orders and decrees under which the land was Reversed and bill dismissed. L. E. DAVIS v. L. A. WHITTINGTON et al. (No. 24045.) (Supreme Court of Mississippi, Division A. May 19, 1924.) Appeal from Chancery Court, Franklin County; R. W. Cutrer, Chancellor. Theo. McKnight, of Bude, and Truly & Truly, of Fayette, for appellant. L. A. Whittington, of Natchez, for appellees. SMITH, C. J. Two errors only appear in the decree of the court below: (1) The attorney's fee provided in the notes should have been allowed; and (2) the appellee should not have been allowed credit for interest on the mortgage to the Federal Farm Loan Bank. The decree of the court below will be reversed, and a decree will be rendered here in accordance with this opinion. Reversed and decree here. Wash WILLIAMS v. STATE. (No. 23879.) (Supreme Court of Mississippi, Division A. May 19, 1924.) Appeal from Circuit Court, Amite County; R. L. Corban, Judge. "Not to be officially reported." J. A. Wiltshire, of Magnolia, for appellant. PER CURIAM. The affidavit on which the search warrant was made is void. Spears v. State (Miss.) 99 South. 361. Consequently the evidence procured by means of the search is inadmissible. Tucker v. State, 128 Miss. 211, 90 South. 845, 24 A. L. R. 1377. Reversed and remanded. Appeal from Circuit Court, Madison County; Jas. E. Horton, Jr., Judge. Ross Bullock was convicted of forgery, and appeals. Affirmed. The indictment is as follows: "The grand jury of said county charge that before the finding of this indictment Ross Bullock, with intent to injure or defraud, did falsely make, alter, forge or counterfeit an instrument in writing in words and figures substantially as follows: 'Huntsville, Ala. 12/18/1922, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Craig & Brown, of Selma, for appellant. Harwell G. Davis, Atty. Gen., for the State. No. Farmers' State Bank of Huntsville, Alabama, 61-78. Pay to the order of W. N. Turner $9.00 nine dollars for halling loge, W. H. Ikard.' Or with intent to injure or defraud did utter and publish as true the of merit presented by the bill of exceptions, said falsely made, altered, forged or counterfeited instrument in writing knowing the same to be so made, altered, forged or counterfeited, against the peace and dignity of the state of Alabama." R. E. Smith, of Huntsville, for appellant. Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State. BRICKEN, P. J. From the record proper, upon which the appeal is predicated, we find the only question presented for the consideration of this court is the action of the court in overruling demurrers to the indictment. The indictment was in Code form and was not subject to the demurrers interposed. Jennings v. State, 17 Ala. App. 640, 88 South. 187. The record proper is free from error; therefore the judgment appealed from will be affirmed. Affirmed. COOK v. STATE. (2 Div., 283.) (Court of Appeals of Alabama. May 20, 1924.) Criminal law 982-Judgment in prosecution for misdemeanor held insufficient. Judgment reciting impaneling of jury and verdict of guilty, and containing court's adjudiIcation that defendant was guilty of presenting pistol as charged in the indictment, which provided no sentence, but recited the taking of an appeal and the suspension of sentence pending same, held insufficient, under Code 1907, § 6244; judgment being suspended on compliance with either section 6250 or section 6251. Appeal from Circuit Court, Dallas County; S. F. Hobbs, Judge. T. E. Cook was convicted of unlawfully presenting a firearm, and appeals. Judgment affirmed; remanded for proper sentence. The judgment entry recites: "Thereupon came a jury of twelve good and lawful men, who, having been elected, impaneled, and duly sworn according to law on their oaths, say they find the defendant guilty as charged by the indictment, and fix his fine at $10. "It is therefore considered and adjudged by the court that the defendant is guilty of presenting a pistol, as charged in the indictment. "The defendant in this case having reserved certain questions of law for the consideration of the Court of Appeals of Alabama, and having prayed for and obtained an appeal to said court, it is ordered by the court that the sentence in this case be suspended pending such appeal, and defendant's bond is fixed at $100.” SAMFORD, J. There are no exceptions and, no errors of a prejudicial nature appearing in the record, the judgment of conviction is affirmed. The judgment in this case is incomplete. In cases of misdemeanor a complete judgment must be rendered, and, when an appeal is taken under section 6244 of the Code of 1907, such judgment is suspended upon a compliance with either sections 6250 or 6251 of the Code, as the case may be. Let the judgment of conviction be affirmed, and the cause be remanded for proper sentence. Affirmed in part, and remanded. BELL v. STATE. (8 Div. 97.) (Court of Appeals of Alabama. April 8, 1924. Rehearing Denied May 20, 1924.) 300 1. Criminal law 778 (12)-Homicide (3)-Instruction as to elements of selfdefense and burden to prove defendant at fault held properly denied. Instruction that burden on state to prove defendant, who acted in self-defense, was at fault in bringing on difficulty, and instruction as to essential elements of self-defense, held properly denied as in effect submitting question of law to jury and not defining self-defense. 2. Homicide 308 (3)—Where conviction was for manslaughter, denial of charge pertinent to murder only not error. Where conviction was for manslaughter, charge relating to offense of murder only was not pertinent, and its denial not error. 3. Homicide 300 (12)-Requested instruction as to defendant's right to shoot in selfdefense held properly denied. Where testimony was in conflict as to whether defendant was wholly free from fault, requested instruction that if deceased approached defendant's door armed with stick, such manner that reasonable and prudent man attempted to enter, threatening defendant in would have anticipated harm, and that in anticipation of such harm defendant shot deceased, he was not guilty, held properly denied. 4. Homicide ~341 Requested instruction held incorrect law and its denial harmless. Denial of requested instruction that, if defendant acted in reasonable apprehension of danger, "the killing would not be wrongful and it would not be the duty of jury to acquit him," held harmless; same being prejudicial to defendant and incorrect law. 5. Criminal law 829(1)-Denial of requested instructions covered by others given not error. Under Acts 1915, p. 815, denial of requested instructions covered by others given is not. error. (100 So.) Appeal from Circuit Court, Marshall Coun- There were no eyewitnesses to the homity; W. W. Haralson, Judge. Jesse Bell was convicted of manslaughter in the first degree, and appeals. Affirmed. These requests for instruction were refused to defendant: "(4) Where the defendant has shown he was acting in self-defense, the burden of proof is on the state to prove that he was in fault in bringing on the difficulty." "(8) If the jury believe from the evidence the defendant did not bring on, provoke, or encourage the difficulty, but was talking to the deceased in a quiet and peaceful manner, and deceased threatened to kill defendant and grabbed up a stick and used it in such a threatening manner as to indicate to a reasonable mind that his purpose was to use it, defendant had a right to shoot, having the right to act upon the reasonable appearance of things." "(10) If the jury believe from the evidence that Brown approached the door of the defendant's house armed with a stick, and attempted to enter, threatening the defendant, using the stick in such a manner that the defendant, as a reasonable and prudent man, anticipated great bodily harm to himself, and in anticipation of bodily harm he shot to prevent it, he is not guilty. "(11) If the defendant, at the time of the killing, entertained a reasonable apprehension of great personal violence, involving imminent peril to life or limb, then the killing would not be wrongful, and it would not be the duty of the jury to acquit him, unless the jury further believe from the evidence that the defendant was at fault in bringing on the difficulty." "(17) The court charges the jury that before the jury can acquit the defendant on the ground of self-defense in this case, these essential elements must concur: First, the defendant must have been free from fault in bringing on the difficulty; second, there must have existed at the time, really or apparently as to lead a reasonable mind to the belief that it actually existed, a present, imperious, impending necessity to shoot in order to save himself from great bodily harm. If, however, after considering the whole evidence, including the testimony of the defendant, the jury have a reasonable doubt as to whether Bell shot Brown in self-defense, or under such circumstances as to make him guilty of crime, it is their duty to give him the benefit of the doubt, and acquit him." Joe Starnes, of Guntersville, for appel lant. Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State. BRICKEN, P. J. This defendant admitted that he killed Dave Brown, the person named in the indictment, by shooting him with a pistol, and that said killing occurred within the jurisdiction of the court where the case was tried. He relied upon self-defense to justify his act in taking the life of deceased. cide, but the physical facts as testified to by several witnesses, the location of the wound, and the range of the bullet, coupled with the statement of defendant as to how the killing occurred, made a question for the determination of the jury. It certainly cannot be seriously insisted that a question of law only was presented and that the court under the testimony committed error in refusing to and in overruling the motion of defendant give the affirmative charge for defendant, to exclude the testimony and discharge the prisoner. In each of the rulings of the court in this connection there was no error. The rulings of the court upon the admission of evidence are so clearly free from error we will not discuss them. Suffice it to say that no ruling of the court upon the evidence injuriously affected the substantial rights of the defendant. It appears that the principal insistence of error relied upon to effect a reversal is the refusal, by the court, of several written charges requested by defendant. Charge 1 was the affirmative charge. As stated, under the evidence and its tendenfore there was no error in its refusal. cies, a jury question was presented; there [1] Charges 4 and 17 were properly refused. These charges in effect submit question of law to the jury. They do not define the element of self-defense. Collins v. State, 17 Ala. App. 186, 84 South. 417. The oral charge stated the law of self-defense in all of its phases, and if the charges were not bad for the reasons stated, their refusal would have been without error; the propositions of law attempted to be stated being fairly and substantially covered. [2] The conviction in this case was for manslaughter; refused charge 7, relating to the offense of murder only, was not pertinent. Charge 8 was fairly and substantially covered by given charge 3, and also by the oral charge of the court. This charge is distinguishable from charge 5, in the case of Gibson v. State, 91 Ala. 64, 9 South. 171, relied upon by defendant, in that it does not hypothesize the use of a deadly or dangerous weapon by the deceased. Refused charge 9, as it appears in this record, is elliptical and unintelligible. [3] Charge 10 was properly refused. This charge, while as contended is analogous to the approved charge in the Christian Case, 96 Ala. 89, 11 South. 338, is not applicable to the facts here. In the Christian Case, supra, it appears that the testimony showed without conflict that the defendant was wholly free from fault, and in the instant case, as has been stated, this question was one for the jury. [4] Refused charge 11 is not identical with a charge requested in Keith v. State, 97 Ala. |