f hold, that $750, in addition to the $250 previously allowed, is as much counsel's fee as should be borne by the respondent, and the decree of the circuit court is to this extent corrected and affirmed. Ex parte Eubank, 206 Ala. 8, 89 South. 656. husband and father to give up his all so as not what respondent should pay counsel for to deprive himself of a support or exhaust a futile effort to secure a divorce for the the corpus of his estate to provide an in- complainant, but what he should in equity come for his wife with whom he is not living and good conscience have to pay for obtainas her husband. We have carefully consid- ing the only relief that was awarded against ered the evidence as to the respondent's him, that is, a small increase in the allowworth and income, and, while he has consid- ance he was making to complainant and the erable city property and a good rental in- minor children, and which was the only decome from some of it, and an interest in cer- fault found against him by the decree of the tain coal lands, the evidence as to the in- trial court. True, the custody of the chilcome from the latter is in conflict and un-dren was awarded the complainant, but the certain. While he has a good rental roll, it respondent never had claimed or contended is not entirely uniform, as some of the prop- for same, and the only default found against erty is at times vacant. It is also heavily him, as above noted, was that the contribumortgaged, and carries a big interest ac- tion by him towards the support of the comcount, which, when considered with taxes plainant and the minor children was slightand insurance, as well as the tax and insur-ly inadequate. We therefore think, and so ance on the home, we feel that the trial court was most generous, if not lavish to the complainant, but the witnesses were examined ore tenus, and there was evidence and inferences from which the trial court could infer that respondent's net income exceeded his statement as to same, and we cannot therefore hold that the conclusion reached by the trial court, which was like unto the verdict of a jury, was so plainly contrary to the great weight of the evidence as to warrant us in disturbing same. The trial court has wisely reserved the future control of the allowance, and can modify same upon a proper showing that it will work oppression or hardship in case of a diminution of respondent's income or a change in the condition or necessities of the family. For instance, the eldest son is nearly of age, and should not be included as a dependent after attaining his majority. Moreover, the present status may not long exist, as it is to be hoped that there may be a reconciliation. [5] The next question presented is the allowance of counsel fees to the complainant, which was $250 pendente lite, and an additional $1,750 upon final hearing. Consider [6] Counsel insist that, as the trial court declined the special and primary relief sought, it had no right, under the present pleading, to award relief that was granted under the general prayer. While the relief granted was not what was specifically prayed for, it was consistent with the case made by the bill and proof, and could be awarded under the general prayer. Mobile Land Co. v. Gass, 142 Ala. 520, 39 South. 229. The decree of the circuit court is corrected as above indicated, and is affirmed. Corrected and affirmed. SAYRE, GARDNER, and MILLER, JJ., concur. 1 CAGLE v. STATE. (8 Div. 570.) (Supreme Court of Alabama. April 10, 1924. Rehearing Denied May 29, 1924.) I. Criminal law 600(1)—Discretionary to grant defendant continuance for absence of witnesses, or put prosecution on showing as to testimony of witnesses, if present. It is discretionary with the trial court to grant a continuance to defendant for absence of witnesses, or put prosecution on a showing by defendant as to what the witnesses would testify, if present. able evidence was had on both sides from practicing lawyers as to the value of the service of the complainant's counsel, and, while we deem the allowance quite generous, it was supported by much of the evidence, and we would not be disposed to disturb it had the trial court granted the primary relief sought and awarded permanent alimony. But this is not a case of divorce and alimony or what respondent should pay for services rendered in an effort to procure same, but involves only what fee should be charged to him for the procurement of incidental reThe denial of a continuance to defendant lief; that is, for getting a small increase in is not erroneous, unless prejudicial. the allowance from the complainant to the respondent, and which is, in a sense, tempo- 3. Jury 70 (8)-Fact that regular jurors un rary. The record is voluminous, and many facts and features have been injected into the case which had no direct bearing upon the only relief granted, and the question is, 2. Criminal law 1166(7)-Denial of continuance to defendant not erroneous, unless prejudicial. available not sufficient ground for objection to list presented. The fact that seven regular jurymen, whose names were on the special' venire, were engaged in the trial of another case, and un (100 So.) Albert Cagle was convicted of murder in the second degree, and appeals. Affirmed. The defendant was indicted for murder in the first degree, and interposed pleas of not guilty, and not guilty by reason of insanity. He was convicted of murder in the second degree, and sentenced to serve 35 years in the penitentiary. The testimony tends to show that the defendant and the deceased were in the road with two other parties, by the name of Smith and Horton, and, while a dispute was going on between the deceased and defendant in which the defendant charged the deceased with taking certain liquor, and with denying that Horton had searched a car for liquor as instructed to do by the defendant, an automobile arrived, in which there were four 5. Criminal law 490, 683(2), 1153(4)-Exclusion of question on redirect examination held discretionary and not reviewable. Where defendant's expert testified on direct and cross-examination that he could hardly conceive of a man drinking a certain quantity of liquor, exclusion on redirect examination of question whether he did not know of in-parties by the name of Collins, Tanner, Culstances where men had drunk such quantity was discretionary, and not reviewable; the question being leading and not rebuttal. 6. Criminal law 1044-Objection to argument of counsel not followed by motion to exclude not reviewable. Mere objection to argument of counsel not followed by motion to exclude from the jury is not reviewable. pepper, and Griffin; that upon the arrival of the car the defendant leveled a gun on the driver of the car and ordered him to stop, and, after keeping the entire party under his control with the gun for some time, he shot the deceased, who died some hours thereafter; and that, after shooting the deceased, he took two of the parties away with him by the use of his gun. Thereafter de 7. Homicide 81-Drunkenness not defense fendant left the community, and was arrested to either degree of manslaughter. Drunkenness may reduce the degree of the homicide from murder to manslaughter, but it is no defense as to either degree of manslaugh in Florida. There was evidence tending to show de fendant was drinking and had been drinking at the time of the shooting; that he had been drinking heavily for some time prior to the occasion, the testimony of his wife being that he had been drinking from a quart to a half gallon of liquor a day. Requested charges 4, 5, and 28, refused to defendant, are as follows: "(4) If the jury, upon considering all the evidence, have a reasonable doubt of the defendant's guilt arising out of any part of the evidence, they must find the defendant not guilty." "(5) The court charges the jury that before they can convict defendant the evidence must be so strong as to convince each juror of his guilt beyond a reasonable doubt, and, if after considering all the evidence a single juror has a reasonable doubt of defendant's guilt arising out of any part of the evidence, they cannot convict him." "(28) It is your duty to acquit the defendant, unless the evidence excludes every reasonable supposition but that of his guilt." Charges 28 and 33 are the same. Appeal from Circuit Court, Jackson Coun- sence of some of his witnesses, or to put the ty; W. W. Haralson, Judge. prosecution on showing by defendant as to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes what the witnesses would testify, if present. [ by this court. Lambert v. State, 208 Ala. 42, It does not appear that the discretion was 93 South. 708, citing B. R. L. & P. Co. v. abused in this case, or that any injury re- Gonzalez, 183 Ala. 286, 61 South. 80, Ann. sulted to defendant, and the denial of the Cas. 1916A, 543, where the cases are collectcontinuance cannot be pronounced erroneous. ed, and Sharp v. State, 193 Ala. 22, 28, 69 Sanderson v. State, 168 Ala 109, 53 South. South. 122. 109; Caldwell v. State, 203 Ala. 412, 84 South. 272. [3] Defendant's motion for a continuance because the requisite number of jurors were not present for the impaneling of the trial jury is refuted by the record, which shows that 50 jurors were qualified and placed on the list from which the jury was struck. The fact that seven of the regular jurymen, whose names were on the special venire, were engaged in the trial of another case, and not available for the list to be stricken from, was not a good ground of objection to the list presented Talley v. State, 174 Ala. 101, 57 South. 445. [4] Defendant's wife testified to his habits of drinking to excess, and that after he shot the deceased he came home and could not walk-being held up by his brother-and was wild; and that she spent the ensuing night at her father's. On the state's objection, defendant's question to her, "Were you afraid to stay with him?" was excluded. This was not error. Her state of mind was not relevant to any issue in the case, and proof of it was not a proper way to illustrate the extent of defendant's drunkenness or mental disturbance. [5] Dr. Bridges, testifying as an expert for defendant, stated on direct examination that he "could hardly conceive of a man drinking from a quart to a half gallon of liquor a day," as had been hypothesized. On crossexamination he repeated that statement, and defendant's counsel, on rebuttal examination, asked him if he did not know instances where a man had drunk that much. On the state's objection, this question was excluded. The matter inquired about was not in rebuttal, and the question was leading. Its allowance was therefore discretionary with the trial judge, and its exclusion is not reviewable. Treadwell v. State, 168 Ala. 96, 53 South. 290; Barlow v. Hamilton, 151 Ala. 634, 44 South. 657; Prattville, etc., Co. v. McKinney, 178 Ala. 554, 59 South. 498. Moreover, if the witness could not conceive of such excessive drinking, it is very certain that he had never observed it. Charges numbered 2, 3, 8, 16, 19, 20, 29, 37, and 41, refused to defendant, were fully and clearly covered by other given charges, or by the general oral charge. [7] Refused charges 11, 12, 13, and 18 forbid a conviction of more than manslaughter in the second degree on a finding that defendant "was so drunk that he was incapable of forming the purpose to do a voluntary act"; or that he "was too drunk to perform a voluntary act"; or that he "was so drunk that he was incapable of volition, incapable of voluntarily doing anything, and incapable of entertaining malice." This is not the law. Drunkenness may reduce the degree of the homicide from murder to manslaughter, but it is no defense as to either degree of manslaughter. Laws v. State, 144 Ala. 118(6), 42 South. 40; Bell v. State, 140 Ala. 57 (charge 7, p. 61), 37 South, 281. These charges were properly refused. [8] Refused charges 4 and 5 were misleading in their predicate of an acquittal on a reasonable doubt of guilt "arising out of any part of the evidence." 4 Michie, Dig. 461, § 559 (8). [9] Refused charges 28 and 33 were bad in requiring an acquittal of defendant, unless the evidence excluded “every reasonable supposition but that of [his] guilt." Smith v. State, 197 Ala. 193 (15), 72 South. 316; Walters v. State (Ala. App.) 95 South. 207. [10] Refused, charge 40 required an acquittal, i the jury could "reasonably reconcile the innocence of the defendant with any theory he has advanced by evidence offered in this case." The meaning and application of this instruction is too obscure to require its giving to the jury. It is quite different from charge 16, approved in Sanford v. State, 143 Ala. 78, 82, 85, 39 South 370. But, if we ascribe to it the meaning given it by counsel, it is clearly faulty in pretermitting any belief by the jury in the evidence supporting the respective theories advanced. In any view, however, the bases for conviction and acquittal were so fully and clearly stated by the trial judge to the jury that the refusal of such a charge as this could not have been prejudicial. The instructions were fair, full, and comprehensive, and all that defendant could reasonably expect. We have considered every point presented by the record, and find no error for reversal of the judgment. It will therefore be affirmed. [6] In his argument to the jury the solicitor remarked that "there are five men laid in the grave in this country to one in England today from the assassin." Defendant's counsel objected to the remark; the trial judge said it was permissible; and counsel excepted to the ruling, but made no motion to exclude the statement. The mere objec tion by counsel, not followed by a motion to exclude from the jury, presents no ques- ANDERSON, C. J., and THOMAS and Affirmed. On Rehearing. (100 So.) SOMERVILLE, J. In their original brief counsel for appellant called attention to the case of Heninburg v. State, 151 Ala. 26, 43 South. 959, as supporting the principle embodied in refused charges 11, 12, 13, and 18, but we inadvertently overlooked its consideration in the opinion. That case is opposed to our other cases, and to the uniform current of judicial opinion elsewhere, and is now expressly overruled, as to its holding that drunkenness may reduce the grade of a homicide from murder to manslaughter in the second degree. The case of Hill v. State, 9 Ala. App. 7, 64 South. 163, which cited and followed Heninburg v. State, supra, must also be disapproved. The application for rehearing will be overruled. All the Justices concur. HUSCH v. STATE. (7 Div. 431.) (Supreme Court of Alabama. May 15, 1924.) 1. Homicide 203 (3)-Statement held properly admitted as dying declaration. Statement by deceased, after stating that he was going to die, and believed it to be his dying statement, held properly admitted as dying declaration. 2. Criminal law 404(4)-Deceased's clothing should not be received in evidence unless It tends to shed light on material inquiry. Clothing worn by deceased at time of killing should not be received in evidence unless it tends to shed light on some material inquiry. 3. Criminal law 404(4)-Shirt and trousers worn by deceased at time of killing admissible if penetrated by bullet. given is not error. 8. Criminal law 814 (3)-Charges as to presumption from failure to offer second dying declaration in evidence held properly refused as not supported by evidence. Charges, in homicide prosecution, that state's failure to offer in evidence second written dying declaration in solicitor's possession authorized presumption that statement was less favorable to state than that in evidence held properly refused as not supported by evidence of solicitor's possession thereof, knowledge of its existence, or even of its having been made. 9. Criminal law 778(10)-Charges as to presumption from failure to offer second dyIng declaration held properly refused in view of defendant's right to require its production. Charges as to presumption from prosecution's failure to offer second dying declaration in evidence that it was less favorable to state than that in evidence held properly refused, as defendant, by rule of court, could have required production of statement if in solicitor's possession. 10. Criminal law 778 (2)-Refused charge permitting presumption that deceased waited for defendant held purely argumentative. if deceased came to forks of road 30 minutes In murder prosecution, refused charge that, before defendant, and approached and provoked difficulty with latter, jury could presume that deceased waited for defendant, held purely argumentative. Shirt and trousers worn by deceased at time of killing held admissible on issue whether he was facing defendant or turning to flee when second shot was fired, if bullet penetrated. Criminal law 761 (3)-Homicide them. 4. Criminal law 1169(1)-Admission of deceased's belt not penetrated by bullet held harmless. Admission of belt worn by deceased at time of killing held harmless, though not penetrated by bullet, in view of admission of shirt and trousers thus penetrated. 5. Homicide 158(1)-Defendant's statement of purpose to have “reckoning" with deceased held properly admitted. In homicide prosecution, defendant's statement that he was at witness' house to have "reckoning" with deceased held properly admitted, it being for jury to say whether he meant it in primary sense of word, as counting or computing, or figuratively in sense of adjustment of reward or penalty on basis of merit, in which sense it is commonly used as prophecy or threat of punishment. 300 (14)-Charge on self-defense, omitting noces. sity for killing, and assuming existence of peril, properly refused. Charge on self-defense, omitting apparent or real necessity for killing, and assuming existence of peril, was properly refused. 12. Homicide 300 (12)-Charge submitting self-defense properly refused as omitting consideration of evidence. In murder prosecution, charge that selfdefense was entirely with jury under law as given by court held properly refused as omitting consideration of evidence. 13. Criminal law 815(1)-Charge on consideration of dying declaration held properly refused as argument based on partial facts. Charge that dying declaration should be considered in light of fact that deceased was not cross-examined, whether he told all the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 SO.-21 facts, and that he made another statement out of court would be unfavorable to the party thereafter, held properly refused as argument in possession of it." based on selected and partial facts. 14. Criminal law 811(1)-Charge that dying declarations must be considered with great caution properly refused as singling out particular evidence for suspicion. Refused charge that law requires dying declarations to be considered with great caution held improper as singling out particular evidence for suspicion, and tending to mislead jury. 15. Criminal law 763, 764 (21)-Credibility of dying declaration should not be impeached and weight impaired by instruction. Jury should be instructed that dying declaration should be considered in light of circumstances under which made, and given such credence as entitled to in their judgment, but impeachment of its credibility and impairment of its weight are matters for argument by counsel, and not for instruction by court. "(18) I charge you that there is in evidence what is termed a dying declaration. The law says that such statements are competent for the light of all the evidence, but you should your consideration which you may consider in consider the dying declaration in the light of the fact that the deceased was not cross-examined by any one, and whether or not he has told all the facts, and you may also consider the further fact that he made another and separate statement, and after this one was made, and had it reduced to writing, if you believe such second statement was made and reduced to writing." Isbell & Scott, of Ft. Payne, for appellant. Harwell G. Davis, Atty. Gen., for the State. SOMERVILLE, J. [1] Several witnesses testified that the deceased stated just before he made the written statement which was re Appeal from Circuit Court, De Kalb Coun- ceived in evidence as his dying declaration ty; W. W. Haralson, Judge. James Husch, alias, etc., was convicted of murder in the first degree, and appeals. Affirmed. that he was going to die, and the declaration itself was prefaced by the statement that he believed it to be his dying statement. On this predicate the stateinent was properly admitted as a dying declaration. 14 Michie's These requested charges were refused to Digest, 114, § 182. the defendant: "(3) I charge you that if you believe from the evidence that Black struck Husch on the head with a rock and knocked him back against his buggy, and that Husch, being thus suddenly aroused, killed Black by shooting him, but as soon as he had time to reflect was sorry for his act, and tried to take Black home and have him cared for, then he could be guilty of nothing higher than manslaughter in the first de gree." "(8) I charge you that if you believe from the evidence in this case that Black made a dying statement at the hospital after making the one in evidence, then you have a right to presume that it was less favorable to the state than the one produced in evidence. a "(9) I charge you that, where a party has in its possession certain testimony, such as dying declaration of a man now deceased, and which statement it would be allowed to use if it is desired to do so, then the failure to produce such statement or evidence is open for your consideration, and you are entitled to presume that if the statement were produced it would be less favorable to the state than the one it did produce. **(10) I charge you that, if you believe from the evidence in this case that Black came to the forks of the road 30 minutes before Husch did, and that he approached Husch and provoked a difficulty with him, then you would be entitled to presume that Black waited at the forks of the road for Husch. [2] The trial court admitted in evidence, over defendant's objection, the shirt, trousers, and belt worn by deceased at the time he was killed. Such articles should never be offered or received in evidence unless they "have some tendency to shed some light upon some material inquiry." Rollings v. State, 160 Ala. 82, 86, 49 South. 329; Pearson's Case, 97 Ala. 219, 12 South. 176; A. G. S. R. R. Co. v. Bell, 200 Ala. 562, 76 South. 920. [4] It may be that there was no justification for the introduction of the belt, but in any case it could do no harm when viewed in connection with the other clothing, and can furnish no ground for a reversal of the judgment. [5] The homicide was committed in August, and the state was allowed to show that one night in the preceding May defendant went to the witness' house and said he was down there "to have a reckoning with Black [the deceased]." It is insisted for defendant that this language does not import a threat, and was not admissible as such. The primary meaning of "reckoning" is a counting "(11) It is the law that, where one party to a suit is in possession of evidence which is competent and material to the issues being tried, then it is the duty of the party thus in possession of such evidence to produce it in court, and if it fails to do so then the jury are entitled to presume that the evidence thus kept |