BRICKEN, P. J. The prosecution against this appellant originated in the county court of Clay county, and the affidavit or complaint charged the offense of assault and battery with a stick upon one J. F. Bradford.

2. Criminal law 829(1)-Refusal to give
charge covered by charges given not error.
Refusal to give a requested charge, which
was covered by charges given, held not error.
3. Criminal law 782(13)-Charge authoriz.
ing acquittal, if facts reconcilable with guilt
of another, held properly refused, as mislead.
ing, under evidence.

4. Criminal law 778 (4)—Charge as to relative weight of presumptions held properly refused as argumentative.

[1, 2] The appeal here purports to be from a judgment of conviction in the circuit court but, as insisted by appellant, there is nothing in this record to show how the circuit Requested charge that if the facts, no matcourt acquired jurisdiction of this case. Sec-ter how strong, could be reconciled with guilt tion 6726 of the Code of 1907 provides the of some other person, then accused's guilt was statutory method and process necessary, on not shown sufficiently, held properly refused, as appeal from county court, to transfer a case misleading under the evidence; such charge and to give to the circuit court jurisdiction being proper only when the evidence is circumstantial, with tendencies pointing to another thereof; and in the case of Hall v. State as the guilty party, to the exclusion of ac(Ala. App.) 95 South, 905, this court, follow-cused. ing said statute, stated in detail what were thought to be the necessary requirements to this end. And in McLosky v. State, 98 South. 706 (on rehearing), this court followed the Hall Case on this question. But in Ex parte State ex rel. Attorney General, re McLosky v. State, 98 South 708, the statute in question (section 6726) was in effect emasculated and held to mean nothing, and it was held that the recitals in an appeal bond suffice to give the circuit court jurisdiction, notwithstand- 5. Criminal law 1087(1)-Absence of suffi ing a failure of the county judge to make the statement as required by the statute. The following excerpt of that opinion is not quite clear to the writer:

"We recognize that the circuit court does not acquire jurisdiction by the execution of an appeal bond, for such bond is not a condition preIcedent to an appeal; but the recitals of the appeal bond suffice to show the trial and conIviction of the defendant in the county court, and his appeal from a conviction to the circuit court, thereby giving to the latter jurisdiction of the cause."

The conclusion, however, is clear, and under the statute (Acts 1911, p. 95, § 10), this court must conform its holding thereto.

However, in the instant case, the record contains no transcript by the county judge, and the clerk certifies that none was made. Nor does the record contain an appeal bond. This results, of course, that no jurisdiction was conferred upon the circuit court from any source. The appearance bond contained in the record has no recitals of any trial or conviction in the county court, and makes no reference to any appeal having been taken in this case.

The cause is reversed and remanded.
Reversed and remanded.

A requested charge that the presumption of innocence of accused was stronger than the presumption of possession by reason of whisky being found in the pasture, held properly refused as argumentative.

On Rehearing.

cient appeal bond, or transcript, held to require reversal.

Absence from the record of a sufficient appeal bond, or transcript, of the proceedings in inated, held to require a reversal. the county court where the prosecution orig

Appeal from Circuit Court, Winston County; R. L. Blanton, Judge.

Jack Nix was convicted of violating the prohibition law, and appeals. Reversed and remanded on rehearing.

These charges were refused to defendant:

"(8) The humane provision of the law is: That there should not be a conviction upon the evidence, unless to a moral certainty it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure of proof which the law requires."

"(11) The court charges the jury that the presumption of innocence which surrounds the defendant is stronger than the presumption of possession by reason of the whisky being found in an open cow pasture."

Curtis, Pennington & Pou, of Jasper, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD, J. [1] Prior to the prosecution, and within the statutes of limitation, and in the county of Winston, there was found buried in defendant's pasture, and in 75 yards of his residence, 18 gallons of whisky. The place where the whisky was found was in plain view of defendant's house, near defendant's cow barn, and the place where

Ala.)

SAVAGE v. STATE
(100 So.)

the whisky was buried was covered with liquor, that "he was going to stop it if it took brush. The whisky appeared to have been a killing to do it," held hearsay, and inadmisburied four or five months, and when it was sible as introducing an immaterial issue prejufound by the officers the defendant was pres- dicial to defendant's case, and having no tenent. He then and there said to the officers: dency to show a threat toward deceased. "What would you take to settle this right 3. Criminal law 1169(1)-Testimony as to movements of defendant's witness held not here?" He further said: "I've got the monprejudicial. ey." He then asked the officers for a drink of the whisky, and, on being refused, asked for the jugs.

[2, 3] Charge 8 refused to defendant is covered by given charge 2 and charge unnumbered, which, we mark 42. But this charge as applied to the facts of this case is misleading. For this charge to be proper in any case the evidence must be circumstantial, with tendencies pointing to another as the guilty party to the exclusion of defendant. Ex parte Bud Hill (Ala. Sup.) 100 South.

315.

[4] Charge 11 is an argument. The true rule sought to be invoked by charge 11 will be found in Oldacre's Case, 16 Ala. App. 151, 75 South. 827; Maisel's Case, 17 Ala. App. 12, 81 South. 348.

The facts, as testified to by the state's witnesses, were sufficient to make this a jury We find no error in the record, and the judgment is affirmed.

case.

Affirmed.

On Rehearing.

[5] It is now called to our attention that the record contains no sufficient appeal bond, or transcript of the proceedings in the county court, where this prosecution originated. It follows that the rehearing must be granted. Ford v. State (7 Div. 946; Ala. App.) 100 South, 917.

In homicide case, admission of irrelevant testimony that defendant's witness had come to place involved a week or so prior to trial, with other people, in "cars," not shown in any way connected with defendant, held not prejudicial.

4. Witnesses 317(4)-That state's witness was gambling elsewhere at time of shooting was material to discredit him.

That state's witness, who testified he was present, was elsewhere when the shooting occurred, and engaged in gambling, was material to discredit his testimony as to number of shots fired.

5. Homicide 188(1)-Proof of deceased's reputation as "overbearing" held admissible.

Proof of deceased's general reputation as an "overbearing" man held admissible to illustrate the circumstances of the killing and qualify and give point to uncommunicated threats, as also deceased's conduct at time of killing, and its exclusion was not cured by court's question whether witness knew deceased's reputation as being peaceable and quiet, or violent and dangerous, etc., omitting "overbearing."

6. Homicide 192-Testimony of company manager that he had instructed deceased to co-operate with defendant, a deputy sheriff, held admissible.

In prosecution against a deputy sheriff of a mining company for shooting superintendent

Rehearing granted. The judgment is re- after refusal to leave a negro dance hall, testiversed, and the cause is remanded.

(6 Div. 365.)

SAVAGE v. STATE. (Court of Appeals of Alabama. June 10, 1924. Rehearing Denied June 24, 1924.)

1. Homicide 276-Questions as to fault, possibility of retreat, and necessity to shoot, held for jury.

In homicide case, where testimony as to whether deceased or defendant provoked the shooting was conflicting, question of who was at fault, whether defendant could have retreated without increasing his danger, and whether it was necessary to fire when he did, held for the jury.

2. Criminal law 419, 420 (1)-Homicide

mony of the company's manager that he had instructed deceased to co-operate with defendant in keeping white men away from the hall, and told him that he had so instructed defendant, held admissible to show relation of the parties, and which provoked the difficulty.

7. Homicide 163(1)-Whether deceased had had previous difficulty held irrelevant.

In homicide prosecution, whether deceased had ever had previous trouble held irrelevant. 8. Witnesses 277 (2)-Cross-question whether defendant deputy sheriff had reported deceased's violation of prohibition law testified to held proper.

ty

In homicide case, when defendant, a depusheriff, testified that he had found deceased, on former occasion, violating the prohibition law, cross-question whether he had reported it to the sheriff was proper.

statement held not reversible error.

158(1)-Statements of defendant held inad-9. Criminal law 720 (5)-State's attorney's missible as hearsay, and as not showing threat.

In homicide case, remarks of defendant, who was deputy sheriff for a mining company, 40 minutes before the shooting, concerning deceased's failure to help to stop handling of

State's attorney's statement in argument that "one could go down the road and get a petition that a man's character is good, when his soul is as black as Hades," while not argument, held not reversible error.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

10. Homicide 77-"Manslaughter in first de- | defendant coming from the well, defendant gree" defined. stopped, and he and witness talked about some boys doing some shooting at the barber shop, and defendant said he was going to stop it. Upon being pressed to state the exact language used by defendant he answered: "He said they had the wrong G― dman running it, and he was going to stop it Appeal from Circuit Court, Walker Coun- made to exclude this answer, which was overif it took a killing to do it." Motion was ty; R. L. Blanton, Judge.

In the oral charge, the court instructed what he (defendant) said. There were obin part as follows:

(100 So.)

witness, had come to Jasper "a week or so" | ing white people away from this negro dance before the trial in company with other peo- hall, at the same time telling deceased that ple, in "cars," not shown in any way con- he had so instructed defendant. The court nected with defendant, while irrelevant, is refused to permit this evidence, and defendnot error of such nature as would authorize ant excepted. This evidence would have a reversal. shown a modification of the authority of deceased as superintendent of the mines, and certainly was relevant to show the relative positions of the parties, at the time of the fatal difficulty, as related to the question of who provoked the difficulty. If at the time of the difficulty defendant was in superior. control as to whether white men should remain at a negro dance, it was the duty of deceased not to interfere with him in the discharge of that duty. This evidence might have much weight with the jury in determining one of the main issues in the case, to wit, who was at fault in bringing on the difficulty.

[4] The fact that Tom Lipscomb, a state's witness, was at another place than that testified to by him at the time of the shooting, and at such place was engaged in gambling, would be material as tending to discredit the testimony given by Lipscomb as to the number of shots fired, he having testified that he was in the dance hall at the time of the shooting.

[5] The defendant sought to prove the general reputation of the deceased, "as to whether he was a peaceful or overbearing man." This the court refused to allow. In Roberts v. State, 68 Ala. 156, such evidence is held always to be admissible where uncommunicated threats are received, and for the like purpose of illustrating the circumstances of the killing, and of qualifying and giving point to such threats, as also the conduct of the deceased at the time of the killing. Roberts Case, supra; Eiland v. State, 52 Ala. 323; Bowles v. State, 58 Ala. 335; Fields v. State, 47 Ala. 603, 11 Am. Rep. 771. The court sought to correct this error by himself, asking the witness the question, if he, the witness, knew the reputation of deceased as being a peaceable, quiet man, or whether he was violent, dangerous, or bloodthirsty. This question omitted the quality of "overbearing" included in the definition in the Roberts Case, supra, and to which defendant was entitled. The Roberts Case has never been overruled or modified so far as we know, and the Attorney General cites us no authority to the contrary. As to this proposition the trial court was in error.

[6] The dance hall at which this homicide took place was located in the camp of the Corona Coal Company, located at Patton, of which the deceased was the local superintendent, and defendant was a deputy sheriff, holding a regular commission, whose special duties, so far as the Corona Coal Company, was concerned, were to preserve law and order in the camp. The general manager of the company, and superior in authority to both deceased and defendant, was G. M. Powell, who fixed by his orders the general and special duties both as to deceased and defendant. Powell was being examined as a witness by defendant, who sought to prove by him that he, as manager, had instructed deceased to co-operate with defendant in keep

[7] Whether deceased had ever had any trouble before this difficulty was not relevant to any issue in this case.

Questions asked defendant's witness Powell on cross-examination were properly allowed. Much latitude is allowed on crossexamination, and in this instance were well within the bounds.

The details of the conversation between the defendant's witness Lollar and deceased were not admissible, and were properly excluded. 1 Mayfield Dig. 331 (16).

[8] On cross-examination of defendant, after defendant had testified that he had on former occasion found deceased violating the prohibition law, it was within the bounds of fair cross-examination for the solicitor to ask him if he reported this to the sheriff.

[9] The statement of the solicitor in his argument that, "one could go down the road and get a petition that a man's character is good when his soul is as black as Hades," while not argument, is not reversible error. Bridgeforth v. State, 16 Ala. App. 584, 80 South. 158.

The question of malice is not involved in the judgment appealed from, hence we do not pass on the several charges involving malice.

[10] The court's definition of manslaughter is sustained by authority. Ragland v. State, 125 Ala. 30, 27 South, 983; Langston v. State, 16 Ala. App. 123, 75 South, 715; Thomas v. State, 139 Ala. 83, 36 South. 734.

Other questions presented will not likely arise on another trial.

For the errors pointed out, let the judgment be reversed and the cause remanded. Reversed and remanded.

Appeal from Circuit Court, De Kalb Coun- ton, Crenshaw & Rushton, of Montgomery, for ty; W. W. Haralson, Judge.

Dolph Berry was indicted under two counts, charging the manufacture of prohibit-conclusion that the trial court properly refused All justices concur in the ed liquors and the possession of a still. From a general verdict of guilty, he appeals. Affirmed.