[Williams v. The State.] 1. Williams v. The State. Indictment for Forgery. What writing is subject of forgery; averment of extrinsic facts. A writing which purports to be signed by a landlord, and to be a waiver of all his rights as against the crop of his tenant, except a specified sum for rent of land and hire of a mule, and which declares that he holds no other claim against his tenant, will not support an indictment for forgery (Code, § 3832), without an averment of the extrinsic fact, that he had made advances to the tenant; and an averment that he "held a lien on the crop for rent and advances," is not sufficient. FROM the Circuit Court of Choctaw. Tried before the Hon. WM. E. CLARKE. The defendant in this case was indicted for the forgery of a written instrument in these words: "I hereby waive to W. G. Bevill all my rights and immunities as landlord over Ed. Jackson's crop of the present year, for all claims I have, or may have, against the said Ed. Jackson or Henry Williams, except one bale of cotton weighing five hundred pounds, that said Ed. Jackson will owe me as land rent, and twenty-five dollars that he will owe me as mule rent for the present year. June 13th, 1888. I holds no claime on Ed. Jackson but the rent, one bale of cotton, and mule rent, 25 dollars." Signed "Yours truly, A. M. Lewis." The indictment charged that the defendant, Henry Williams, with intent to injure and defraud, did falsely make, forge, &c., this writing, setting it out; "meaning thereby that one A. M. Lewis, the landlord of said Ed. Jackson, has waived his lien as such landlord on the crop of his said tenant for the year 1888, except for one bale of cotton as rent, and $25 for the rent or hire of a mule; and the grand jury aver that said A. M. Lewis was at the time, to-wit, in and during the year 1888, the landlord of said Ed. Jackson, and, as such landlord, held a lien for rent and advances on the crop of said Ed. Jackson; and the grand jury further aver that said Ed. Jackson was at the time, to-wit, in and during the year 1888, a tenant of the said A. M. Lewis." The defendant demurred to the indictment, and the court overruled the de murrer. W. F. GLOVER, for appellant, cited Leslie v. Hinson, 83 Ala. 268; Cockburn v. Washburn, 76 Ala. 489; Diron v. State, $1 Ala. 65. 90 649 120 390 [Williams v. The State.] WM. L. MARTIN, Attorney-General, for the State, also cited Dixon v. State, 81 Ala. 61. STONE, C. J.-Certain writings-a promissory note, or bill of exchange, for illustration-import on their face the creation of a pecuniary liability. So of many other written instruments, if they import legal validity. That is, if the writing shows on its face, without reference to extrinsic facts, that, if genuine, it creates, discharges, increases or diminishes a money liability, or transfers or incumbers property, or surrenders or impairs an existing valid claim to, or lien on property, then the false making of such written instrument, with intent to defraud, is, without more, forgery, and will justify a conviction of that grave offense. To fall within the rule, however, which dispenses with the averment of extrinsic facts, the writing itself must show that, if genuine, it affects some existing property right, or legal liability; for, otherwise, it fails to show its false making or utterance could defraud any one. There must be both the intention and power to defraud, or the legal offense is not committed. This principle rests on the soundest reason, and the highest authority.-Dixon v. State, 81 Ala. 61; 2 Bish. Cr. Law (7th Ed.), § 545. The indictment in this case charges that Lewis, whose name it avers was forged, was the landlord of defendant, and, as such, had a lien on the crop grown on the rented premises, for any advances he had made to Jackson, or might make to him. The law creates the lien, if the relation of landlord and tenant existed, and if advances were made. Cockburn v. Watkins, 76 Ala. 484. But, unless advances were made, there was no lien in fact; and a certificate that no claim or lien existed, other than that for land and mule rent, though forged, could not injure or defraud any one, and legal forgery could not be predicated of it. To make the indictment sufficient, it should have averred that Lewis had made advances to Jackson—such advances as the statute declares give him a lien.-Code of 1886, § 3056. The indictment is insufficient, and the demurrer to it should have been sustained. Reversed and remanded. VOL. XC. [Zaner v. The State.] Zaner v. The State. Indictment for Manslaughter. 1. Punishment of manslaughter; inconsistent statutory provisions.—By statutory provision, a person "convicted of manslaughter in the first degree must, at the discretion of the jury, be imprisoned in the penitentiary, for not less than one nor more than ten years" (Ĉode, § 3733); but, by another statute of later enactment (4492), “in all cases' in which the sentence to imprisonment is for twelve months or less, "the party must be sentenced to imprisonment in the county jail;" and this later statute must be construed as amending the former, and limiting the discretion of the jury, on a conviction of manslaughter in the first degree, and sentence to imprisonment for one year, as to the place of punishment. 2. Sufficiency of verdict; remandment for trial de novo, on reversal. A verdict which finds the defendant "guilty of manslaughter in the first degree, and assign[s] him to the penitentiary for twelve months," does not authorize a sentence to the penitentiary for that term; and this court, reversing the judgment, will go beyond the verdict, and remand the cause for a new trial. 3. Self-defense; charge ignoring provocation or fault.-In a case of homicide, the defendant can not invoke the doctrine of self-defense, if he provoked the difficulty, or was at fault in bringing it on; and when there is any evidence tending to show such provocation or fault on his part, a charge requested which ignores it, while asserting the right of self-defense, is properly refused. FROM the Circuit Court of Cleburne. The indictment in this case charged that the defendant, Samuel C. Zaner, "unlawfully and intentionally, but without malice, killed Walter D. Bell, by shooting him with a pistol." The homicide occurred about dark, on the evening of January 8th, 1890, in the town of Heflin, in said county. The deceased was a paralytic, and unable to stand on his legs; and as he was sitting in a chair in the door-way of his shop, holding a Winchester rifle across his lap, the defendant passed by, who was the marshal of the town, and who had a policeman's club in his hand, and a revolver under his arm. Some few words passed between them, when each fired at the other; the defendant being struck in the thigh with a rifle-ball, and discharging five or six shots from his pistol at the deceased, which resulted in his death. As to what was said at the time, a witness for the State testified: "Deceased told me in his dying declarations, that he was sitting in his door, with his gun in his hand, or lap, when the defendant came walking 6 [Zaner v. The State.] down the side-walk; and, as defendant was passing, he said to him, 'Is that you, Rad?' addressing defendant; that defendant said Yes,' and rushed on me with his pistol, and shot me. I tried to shoot. I may have shot first." The defendant testified in his own behalf, that as he was passing the shop of the deceased, the latter hailed him, and asked, "Is that you, Rad Zaner?" to which he replied, "Yes;" that the deceased then said, "Rad, it is time for us to settle our matters," and at once threw up his gun and fired, the shot striking him in the leg, and knocking him down; that he soon rallied, caught hold of an awning-post, and fired as quick as he could. There was evidence showing ill-feeling between the parties, or "bad blood," as one of the witnesses expressed it, growing out of the defendant's threat, a few nights before, to arrest several persons at the shop of the deceased for disorderly conduct; and evidence was adduced by the defendant of threats made against him by the deceased, in connection with that matter. One Etheridge, a witness for the State, testified that, as he passed the shop of the deceased, ten or fifteen minutes before the shooting, he found him sitting in the door-way with his rifle across his lap; that deceased said, "He intended to sit there until he shot Zaner;" that he, witness, met defendant soon afterwards, and told him of this threat; and that defendant replied, "He reckoned Bell would not shoot." The defendant testified, also, that he was making his regular rounds as marshal, and was armed as usual. "The foregoing being substantially all the evidence," as the bill of exceptions states, the court charged the jury at the instance of the State: "If the jury believe from the evidence that Zaner walked by Bell's door, with his club swinging in his hand, and his pistol under his arm; and that he went there, not in the discharge of his duty as marshal, but for the purpose of provoking Bell to begin the difficulty, and, by so doing, did provoke Bell to begin the difficulty; then the defendant can not invoke the doctrine of self-defense." The defendant excepted to this charge, and he also excepted to the refusal of the following charge, which was asked by him in writing: "If the jury believe from the evidence that the deceased shot first; and that the circumstances were such as to create in the mind of the defendant a reasonable belief, and did create in his mind a reasonable belief, that the deceased would immediately shoot again; and that the defendant was in danger of the loss of his life, or of great bodily harm, and that an attempt to retreat would place him in as great, or greater danger; then the defendant had the right to invoke the law of self-defense, and is not guilty as charged." [Zaner v. The State.] JAS. AIKEN, and T. J. BURTON, for appellant. WM. L. MARTIN, Attorney-General, for the State. CLOPTON, J.-The court adjudged that appellant be imprisoned in the penitentiary for one year, in accordance with the verdict of the jury, which is in the following language: "We, the jury, find the defendant guilty of manslaughter in the first degree, and assign him to the penitentiary for twelve months." The discretion to fix the place of imprisonment was exercised by the jury under section 3733 of the Code, which declares: "Any person who is convicted of manslaughter in the first degree must, at the discretion of the jury, be imprisoned in the penitentiary for not less than one, nor more than ten years." Section 4492, so far as applicable to the judgment rendered in this case, provides: "In all cases in which imprisonment or sentence to hard labor is twelve months or less, the party must be sentenced to imprisonment in the county jail, or to hard labor for the county." In Gunter v. State, 83 Ala. 96, it was held, that the act of March 7, 1876, prescribing the legal punishments in this State, which is comprised in section 4450 of Code of 1876, being of later date, amended section 4303 of the same Code, so as to modify the discretion thereby reposed in the jury, and to limit it, when the verdict is manslaughter in the first degree, to fixing the period of punishment, leaving to the court to adjudge its place and character. In construing inconsistent or repugnant sections of a Code, the same rule applies as to a repeal by implication, which controls the construction of original statutes of different dates. The sections transcribed from later statutes amend or modify the sections transcribed from earlier statutes, so as to produce an agreement between them. Sections 4303 and 4450 of the Code of 1876 having been brought forward and incorporated in the present Code as section 3733 and 4492, the latter section must be construed, under the rule stated, to amend section 3733, so as to modify the discretion of the jury in the respects stated in Gunter v. State, supra.-Steele v. State, 61 Ala. 213; State v. Herndon, 74 Mo. 410; Endlich on Stat. § 183. The sentence of defendant to the penitentiary for one year is without authority of law. Notwithstanding this, it is insisted, that as the verdict of the jury finds defendant guilty of manslaughter in the first degree, and fixes the term of sentence at twelve months, that portion prescribing the place of imprisonment in no way interferes with the power of the court to adjudge the legal sentence as to the place and nature of the punishment, and should be re |