[Stoball v. The State.] The inquiry propounded to the witness Merriwether, as to his knowledge of the place where Sallie Williams (the person alleged to have been slain) was killed, was merely introductory to his further examination, in the course of which he testified that on the night of the killing he was sent for, and on reaching the house where the body of the deceased was lying-that he saw she had been shot through the head with a pistol-that he found two pistol balls lodged in the house, and an iron bar in front of the house. The materiality of this testimony was fully developed in the progress of the trial-in some respects, material to the defendant as well as to the prosecution. Questions of this character, if answered affirmatively, are often necessary, to show the opportunities of the witness to know the facts to which he may testify on further examination, and if answered negatively, they are harmless. The case to which we are referred in support of the objection (Green v. State, 96 Ala. 29), recognizes the propriety of such inquiry, when it is followed by or connected with material evidence of which it may be deemed introductory or explanatory. It was said by COLEMAN, J.: "It is permissible, in fact, unavoidable, sometimes, to propound a question prima facie objectionable, when it is merely introductory to questions, necessary to elicit facts which are legal evidence. Whenever it is subsequently shown that the apparent illegal evidence is a connecting part of, or explanatory of legal evidence, and was only used as necessarily introductory thereto, an objection to it cannot be sustained."-Frazier v. State, ante, p. 442. The exceptions to the instructions given by the court ex mero motu, are wanting in merit. The first of these instructions, taken and construed in its entirety, as it must be, properly defines malice, the essential element of murder, as it is defined in the text books, and in repeated decisions of this court. A formed design, unlawfully, to do mischief or injury to another, is malice in its general acceptation. And as this instruction postulates, the formed design on the part of the defendant to take the life of the deceased, unlawfully, not in selfdefense, without circumstances of provocation repelling the imputation of malice, is the ingredient of murder. Necessity only, real or appearing to be real, justifies the taking of human life, and this is the substance of the [Stoball v. The State.] remaining instruction. When by an exception taken, the attention of the judge was directed to the omission to instruct that the necessity need not be real, that it was sufficient to justify, if it was apparent, it was a duty to cure the omission, and the curing of it could not by possibility be of injury to the defendant. When an assault is made on a sudden quarrel, and a mutual combat ensues, as in the present case, though the assault may be made with a dangerous or deadly weapon, it is the duty of the assailed to retreat, that its threatened consequences may be avoided, if the circumstances are not such as to impress him with the reasonable belief that retreat would increase his peril. "For when it comes to a question whether one man shall flee or another shall live, the law decides that the former shall flee, rather than that the latter shall die." The first instruction requested by the defendant, was in direct contravention of this doctrine, so essential to the preservation of human life. There was not a fact, or circumstance in evidence, having a tendency to reduce the killing to manslaughter in the second degree. Every fact in evidence tends to no other conclusion than that the killing was intentional. The instructions requested in reference to manslaughter in the second degree were abstract and properly refused. De Arman v. State, 71 Ala. 351; Holley v. State, 75 Ala. 14. The remaining instruction seems to have been extracted literally from an instruction which was approved in White v. State, 103 Ala. 72. As applied to that case, and offenses of which there are not differing degrees, each of which is comprehended in the general allegations of the indictment, we do not doubt that the instruction is correct. But as applied to this case, and other offenses of which there are degrees, it is erroneous. It is true, in White's Case, there could have been a conviction of an attempt to commit bribery, the offense charged.-Cr. Code of 1886, § 4482. But the evidence had relation to a completed offense only, and did not necessitate any reference to a conviction for an attempt to commit it. The material allegations of the present indictment, comprehend all the ingredients of murder in the first degree, and upon it there may be a conviction of either of the degrees of criminal homicide-murder in the first [Thomas v. The State.] degree, murder in the second degree, voluntary or involuntary manslaughter. A conviction of murder in the first degree could not be had, unless there was proof beyond a reasonable doubt of all the distinguishing characteristics of that offense as described in the statute. But without proof of these characteristics, there could have been a conviction of murder in the second degree, if the homicide was malicious. Or there could have been a conviction of manslaughter in either of its degrees. The least that can be said of the instruction, as applied to this and similar cases, is, that it is well calculated to mislead and confuse the jury, and contravenes the long line of decisions of this court, in cases of this character, that instructions predicated upon the insufficiency of evidence to justify a conviction of a higher degree of homicide, without regard to its sufficiency to justify a conviction of a lesser degree, are essentially er roneous. We find no error in the record, and the judgment is affirmed. Affirmed. Thomas v. The State. Indictment for Conspiracy to commit Arson. 1. Conspiracy to commit arson; indictment; fatal variance.- Where an indictment charges conspiracy "to unlawfully and willfully set fire to or burn a corn crib containing corn," and the evidence shows that the building in question was a cabin, with chimney, door and windows, and had been inhabited up to within a month or two of the attempt to burn it, when the owner had put corn therein, there is a fatal variance between the allegations of the indictment and the proof; such building not being a "corn crib," as averred. APPEAL from the Circuit Court of Lee. Tried before the Hon. JESSE M. CARMICHAEL. The appellant was indicted, tried and convicted for conspiracy to commit arson. The averments of the indictment are sufficiently stated in the opinion. To the indictment the defendant demurred upon the following grounds: "1st. Said indictment fails to aver the owner [Thomas v. The State.] ship of the corn alleged to be in the corn crib. 2d. Said indictment fails to aver that the corn crib mentioned therein is in the curtilage of a dwelling house. 3d. Said indictment avers that the corn crib mentioned in said indictment contained corn." This demurrer was overruled. The other facts of the case are sufficiently stated in the opinion. SAMFORD & SON and S. O. HOUSTON, for appellant. WILLIAM C. FITTS, Attorney-General, for the State. MCCLELLAN, J.-The indictment in this case charges a conspiracy between defendant and one Banks "to unlawfully and willfully set fire to or burn a corn crib, containing corn, said corn crib being the property of Fayette Allrid," etc. It is arson in the second degree to burn any corn crib whether it contains corn or not, or any corn pen containing corn.-Code of 1886, § 3781; Cook v. State, 83 Ala. 62. If we hold that the terms "corn crib containing corn" includes a "corn pen containing corn," in line with the decision just cited, the indictment would be bad, it would seem, on the ground taken by the demurrer that it fails to allege the ownership of the corn.-Smoke v. The State, 87 Ala. 143. But there is a more important question in the case. It is whether the building which Thomas and Banks are alleged to have conspired to burn was either a corn crib, or a corn pen containing corn, within the meaning of the statute. We do not think it was either. The evidence shows that it was a cabin for the habitation of tenants, with chimney, door and windows and all the other characteristics of a cabin or dwelling house, that it has always been used for human habitation up to within a month or two before the attempt to burn it, and that being then untenanted, the owner deposited there some corn and forage which continued in the building up to the time of the alleged offense. The words "corn crib" and "corn pen" have well understood and definite meanings. Everybody understands what a corn crib is and what a corn pen is, and nobody would speak of a dwelling house of even the humble class, called cabins, as either a corn pen or corn crib though it should be temporarily used for the storage of corn. And we conclude [Naugher v. The State.] that the evidence did not sustain the averment of the indictment that defendant and Banks conspired to burn a corn crib containing corn; there was a fatal variance between the allegation and the proof; and the affirmative charge asked by defendant should have been given. Reversed and remanded. 116 463 133 138 116 463 e139 79 Naugher v. The State. Indictment for Murder. 1. Homicide; communicated threats; relevant evidence.—On a trial for murder, where it was shown that the deceased had recently threatened the life of the defendant, which threats were communicated to the latter, and after the defendant had testified as a witness in his own behalf that upon the deceased, with his right hand in or near his hip pocket, saying to him, "Damn you, now I'll get you," he fired upon the deceased, it is permissible for the defendant to testify whether or not he knew the deceased was in the habit of carrying a pistol concealed in that hip pocket; the answer, if in the affirmative, tending to throw light upon the conditions and circumstances attending the shooting. 2. Same; same; same.-On a trial for murder, where the evidence showed that threats made by the deceased against the defendant had been communicated to the latter, the testimony of the defendant as a witness in his own behalf that one day shortly before the killing, after the deceased had been to his house with a shot gun, trying to get him to come out of the house, he secretly followed the deceased to his home, and heard him (the deceased) say to his sister-in-law who was there, "If he had not been too smart for me, I would have got him. I had buckshot this time," is competent and admissible. 3. Same; immaterial and incompetent evidence.-On a trial for murder, it is not competent for the State to prove that at some time previous to the killing, the defendant, while drunk, shot his own horse; such evidence being wholly immaterial to any issue before the jury. 4. Same; evidence of friendly association after communication of threats admissible.-On a trial for murder, where it is shown that the deceased had made threats against the defendant which had been communicated to him, acts of friendly association, such as defendant borrowing meat from the deceased, subsequent to the communication of such threats, are competent evidence, where the plea is that of justification in self-defense. 5. Witness; impeachment of defendant in criminal case.-On a trial in a criminal case, it is not competent for the purpose of impeaching |