[Smith v. The State.] portions of the showings and depositions of defendant's witnesses, and the portions which were not ruled out were read to the jury, the court properly refused to permit the jury to carry the showings and depositions out with them. 16. Same; alternative averments.-Under an indictment for murder alleging the means or instrument with which the killing was done in the alternative-"by hitting him or by striking him with a hatchet or with some blunt instrument to the grand jury unknown"-a charge which instructs the jury to find the defendant not guilty if the grand jury knew from the evidence before them the means or instrument used in producing death, is properly refused unless limited to the count containing the averment that the means were unknown. Same; charge to jury.-Charges which invade the province of the jury are properly refused. 17. 18. 19. 20. 21. Same; same; reasonable doubt.-A charge that "a reasonable Same; same; conviction of manslaughter under indictment for Same; same; constituents of self-defense.-A charge to the jury APPEAL from Criminal Court of Jefferson. Tried before the HON. D. A. GREENE. The appellant, Taylor Smith, was indicted for the murder of artin J. Conniff, was tried and convicted of murder in the second degree and his punishment fixed at thirty years imprisonment in the penitentiary. The indictment was in the following form: "The State of Alabama, Jefferson County. The Criminal Court of Jefferson County. [Smith v. The State.] The grand jury of said county charge that before the finding of this indictment Taylor Smith, unlawfully and with malice aforethought killed Martin J. Conniff, by hitting him or by striking him with a hatchet, or with some blunt instrument to the grand jury unknown, against the peace and dignity of the State of Alabama. H. P. Heflin, Solicitor. On May 6, 1904, the defendant filed a plea in abatement to the indictment, containing four grounds, the first and second grounds, being in substance that there was present during the examination of witnesses before the grand jury that returned the indictment, one Jack T. Stallings, as a stenographer for the grand jury, duly sworn, who was not a member of said grand jury, nor an officer authorized by law to be present. The third and fourth grounds were in substance, that all of the grand jurors who voted to return the indictment did not hear the evidence introduced, upon which the indictment was found, in that one of the jurors was by reason of extreme deafness, incompetent to hear and understand the evidence. The plea was duly sworn to by the defendant. The court sustained a demurrer to the plea interposed by the solicitor. Thereupon the defendant demurred to the indictment on several grounds, in substance as follows: 1st: The alternative averment that deceased was killed "with some blunt instrument to the grand jury unknown" is vague, indefinite and uncertain. 2nd: It does not appear whether it was intended to charge the deceased was killed by being hit or struck with a hatchet, or some blunt instrument to the grand jury unknown, or that the words "by hitting him or by striking him" refer to the averment charging the killing to have been with a hatchet. 3rd: For that it does not clearly appear from the averments of the indictment whether it is intended to charge that the death of the deceased was caused by being hit or struck with some blunt instru [Smith v. The State.] ment, or by the use of said blunt instrument in some other manner. The court overruled the demurrer. The evidence for the State tended to show that the deceased was killed by the defendant as the result of a blow on the head, with a hatchet; that the defendant was a porter in a bar in the city of Birmingham and the deceased came in and called for defendant who was in a back room of the bar; that defendant came out, but deceased did not speak to him and defendant returned to the room, followed by deceased and resumed his duties when deceased struck him with a small piece of wood, and the two engaged in a scuffle during which defendant struck deceased on the head with a hatchet, causing his death. The evidence for the defendant tended to show that his character was good in the neighborhood where he had formerly lived, Hale County, Ala., this being shown by depositions of witnesses residing at that place; that when deceased came in the room where defendant was working the latter was cutting kindling with a hatchet; that deceased asked him his name and what he was doing and defendant replied to the question, and deceased then struck him in the back with a piece of wood and defendant ran, followed by deceased, and the latter struck him. again and grabbed him and a scuffle followed in which defendant inflicted the fatal blow. There was other evidence tending to show that the character of deceased for peace and quietude was not good and that he was a turbulent, quarrelsome and dangerous man. The exceptions reserved by the defendant to the admissibility of evidence are sufficiently shown in the opinion. In the course of his argument to the jury the solicitor used the following language: "Now, as to the showings of these witnesses who were absent, but whose testimony the State admitted for the purpose of going to trial, it was not meant that we admitted its truth, but that if witnesses were present they would swear what was contained in the showings." The defendant objected to this part of the argument of the solicitor and moved to exclude the same from the jury, the court overruled the [Smith v. The State.] objection and motion and the defendant excepted. Upon the introduction of the evidence the defendant requested the court to give the following written charges to the jury, which the court refused to give and he excepted: (1.) (1.) "If the jury believe from the evidence that the grand jury which found the indictment in this case knew from the evidence before them the means or instrument used in producing death of the deceased, they cannot find the defendant guilty." (2.) "If the jury believe from the evidence that from the evidence before it the grand jury that returned the indictment in this case knew that Martin J. Conniff, the deceased, was killed with a hatchet, then the defendant could not be convicted under the present indictment." (3.) "If the jury believe from the evidence that the grand jury which found the indictment in this case knew or could have learned by the employment of reasonable diligence, the weapon or instrument used by the defendant in causing the death of Martin J. Conniff, the deceased, the defendant cannot be convicted under the present indictment." (4.) "If the jury believe the evidence they will find the defendant not guilty." (5.) "If the jury believe the evidence they cannot find the defendant guilty of murder in the first degree." (6.) "If the jury find believe the evidence they cannot find the defendant guilty of murder in the second degree." (12.) "A reasonable doubt is a doubt for which a reason can be given." (17.) "If the jury believe from the evidence that at the time the defendant inflicted the fatal blow on the deceased that he was not actuated by malice, but that he acted from a suddenly aroused, adequate provocation, or that he acted in self-defense, they must acquit him.” (19.) "If the jury believe from the evidence that the defendant was reasonably without fault in bringing on the fatal difficulty and that at the time he inflicted the fatal wound on the deceased, there existed a real or apparent danger, or a present, impending, imperious necessity to strike in order to save his own life or to save himself from a great bodily harm, and that there was no reasonable mode of escape by retreating or by avoiding the combat with safety, they must find the defendant not [Smith v. The State.] guilty." (20.) (20.) "If the jury believe from the evidence that the defendant was reasonably without fault in bringing on the fatal difficulty, and that at the time he inflicted the fatal wound on the deceased there existed a real or apparent danger, or a present, impending, imperious necessity to strike in order to save himself from great bodily harm, they must find the defendant not guilty." B. M. ALLEN, for appellant.-The demurrer to the indictment should have been sustained.-Rogers v. State, 117 Ala. 192; King v. State, 137 Ala. 47; Noble v. State, 59 Ala. 73; Horton v. State, 53 Ala. 488; Raiser v. State, 55 Ala. 64;Pickett v. State, 60 Ala. 77; Hornsby v. State, 94 Ala. 55. It appearing on the trial that a fact known to the grand jury was averred to be unknown, a conviction could not be had.-Winter v. State, 90 Ala. 637; Wells v. State, 88 Ala. 239; James v. State, 115 Ala. 23. The circumstances surrounding the defendant at the time of the confessions were admissible as bearing upon their voluntary character.-Beckham v. State, 100 Ala. 15; Brister v. State, 26 Ala. 128; Bob v. State, 32 Ala. 56; Aiken v. State, 35 Ala. 397; King v. State, 40 Ala. 314. The court should have permitted defendant to show the condition of deceased immediately prior to the killing. The remarks of the solicitor were improper and prejudicial to the defendant. The court erred in not allowing the jury to take the depositions and showing out with them. MASSEY WILSON, Attorney-General, contra.-The plea in abatement came too late.-Thayer v. State, 138 Ala. 1; Daris v. State, 137 Ala. 10. The motion to quash and the plea were without merit. The stenographer was properly with the grand jury when the indictment was found.-Thayer v. State, 138 Ala. 39. The objection urged as to the qualifications of the grand juror is within the curative influence of Code § 5269. The demurrer to the indictment was properly overruled. King v. State, 137 Ala. 47. Evidence of the habits of deceased as to drinking was not admissible when offered. Suringer v. State, 134 Ala. 120. The record does |