[Horn v. The State.] to a formed design. Malice may be inferred from the use of an instrument known to be liable to produce death.3 Brick. Dig., 216, § 524; Hadley v. State, 55 Ala. 31. Reversed and remanded. HARALSON, J., not sitting. 102 144 116 452 117 139 102 144 133 71 102 144 e138 16 102 144 143 47 Horn v. The State. Indictment for Assault with Intent to Murder. 1. Evidence of assault; relevancy.-Where, on a trial under an indictment for an assault with intent to murder, the person assaulted testifies that upon defendant assaulting him and drawing his pistol, witness ran and while running he heard the report of a pistol, and was stricken by a pistol ball, but did not see defendant or any one else shoot the pistol, it is competent for said witness to further testify that, on looking around immediately after being shot, he saw defendant shoot at his (witness's) wife and try to shoot his clerk; such testimony being relevant as tending to show that it was defendant who shot at the witness, as charged in the indictment. 2. Same. In such a case, where the evidence tends to show that the defendant's cause of quarrel was a general one against the family of the man assaulted, for a supposed wrong done by him in his store, the testimony that defendant also attempted to shoot the wife and clerk of the man assaulted is admissible as a part of the res gestæ of the assault for which he was indicted, and as tending to show that the assault was made with the intent to kill. 3. Same; when corroborating evidence admissible.—In such a case evidence of the physical condition of the wife on the following day is admissible, as tending to corroborate the State's theory of what occurred at the time of the assault as developed by other evidence, especially if such evidence tends to discredit the evidence on the part of the defense. 4. Statements by defendant just before and after an assault; corpus delicti.-On a trial for an assault with intent to murder, if, after the State has introduced evidence tending to show that defendant had shot at the person alleged to have been assaulted with a pistol, the State offers to prove statements made by defendant immediately before and after the shooting, such offer is not open to the objection that the corpus delicti had not been proved. 5. General charge of court to jury.—The general charge of the court, as well as special instructions, to the jury should be confined to the [Horn v. The State.] statement of propositions of law arising upon or applicable to the evidence adduced in the particular case; but where the court, while delivering his general charge in a criminal prosecution, states that "there is great conflict in the testimony in this case, and in fact down right contradiction; and in my opinion there has been a great deal sworn on the stand in this case that is untrue," if such statement is correct and borne out by the transcript, and there was no intimation in such part of the charge as to what evidence the judge thought untrue, the statement, though improper, could not have prejudiced the defendant, and no error of law or fact being involved therein, the jury could not have been misled thereby, and the judgment will not be reversed therefor. 6. Same.-Courts, in general charges to the jury, should not go outside of the facts of the particular case being tried, and call the jurors' attention to matters that have no connection with the case; but a judgment in a criminal case will not be reversed merely because the court, in his general charge, has made statements wholly irrelevant to the case, unless it appears that the extraneous and wholly irrelevant matter thus brought to the attention of the jury has misled them, or, at least, had a natural tendency to mislead them, to the prejudice of the defendant. 7. Same.-A direction to the jury by the court, that "if they agreed upon their verdict by half past eleven o'clock [P. M.] they might send for him and he would receive their verdict; but if they did not agree by 11:30 o'clock, he would not come down to receive their verdict, but they would have to wait until morning;" is no ground for the reversal of the judgment, unless it is shown that the verdict might possibly have been influenced by such direction, in that it was rendered before the time named. 8. Charge to the jury; right to believe defendant's testimony.-On the trial of a criminal case, a charge that instructs the jury that "the defendant is authorized, under the statute, to testify in his own behalf, and the jury have the right to give full credit to his statements," is properly refused as being argumentative and misleading. 9. Same; defendant's honest belief of imminent danger.-On a trial for an assault with intent to murder, charges which postulate the defendant's right to shoot the person assaulted, on the former's honest belief that his life was in imminent danger, though the jury may have found that the circumstances were not such as to generate or justify the existence of such belief in the mind of a reasonable man, are erroneous and properly refused. 10. Same; same.-Upon the prosecution for an assault with intent to murder, a charge that predicates defendant's right to shoot and kill the person assaulted, under the other circumstances postulated, upon his mere belief that he was in imminent peril of life, and further that he had no reasonable means of retreat, however unreasonable and unjustified by the circumstances and surroundings may have been [Horn v. The State.] his conclusion in each of these respects, is erroneous and properly refused. 11. Same; reasonable supposition or hypothesis.-In a criminal prosecution, a charge that instructs the jury that "they should not find the defendant guilty, unless the evidence against him was such as to exclude to a moral certainty every supposition or hypothesis but that of his guilt," is properly refused; the law requiring that the evidence should exclude every reasonable supposition or hypothesis but that of guilt. 12. Abstract charges are properly refused. APPEAL from the Circuit Court of Marengo. The appellant was indicted and tried for an assault with intent to murder Isaac Rosenberg, and convicted of an assault and battery. Upon the trial of the cause, the said Isaac Rosenberg, being introduced as a witness for the State, testified that he kept a store in Faunsdale, Ala., and that before the finding of the indictment, the defendant came to his store a little before dark, and asked the witness for five dollars, and without explaining to the witness what five dollars, or anything about the same, immediately began whipping him with a buggy whip; that thereupon the witness ran towards the back part of the store; that witness saw defendant draw his pistol as he started to run; that while he was running he heard a pistol shot, and felt that he was struck; that he did not see the pistol shot by the defendant, that he saw no one shoot at him, and did not know who shot him; that after he was shot he fell down, and while in the kitchen in the back of the store, he saw the defendant shoot once at his wife, who was standing on the front porch of his store. The defendant objected to this testimony as to the witness seeing the defendant shoot at his wife, because it was illegal, irrelevant and immaterial, and duly excepted to the court's refusal to exclude the same. The same objection was raised to this witness testifying that after having shot at his wife, the defendant tried to shoot his clerk, who had hidden behind the counter; and to the refusal of the court to exclude this testimony, the defendant also duly excepted. Upon the examination of one Mack Walker for the State, he testified that on the night of the difficulty between Rosenberg and the defendant, he had a conversa [Horn v. The State.] tion with the latter a short time before the difficulty, and thereupon the State asked the witness to state what was this conversation. The defendant objected on the ground that the corpus delicti of the case had not been proved, and that the confessions and declarations of the defendant were not admissible at that time. The court overruled the objection, and to this ruling of the court the defendant duly excepted. The same objection was raised and the same ruling made and exception reserved in reference to the testimony of Tom Collins. Upon the introduction of J. C. Brown as a witness for the State, he testified that he saw Mrs. Rosenberg the next day, and she had one eye bruised, and it was bloodshot. The defendant moved to exclude this testimony, because it was illegal, irrelevant and immaterial, and duly excepted to the court's overruling his motion. The testimony in behalf of the defendant tended to show that on going to the store of Rosenberg, he asked to be refunded the five dollars, which Rosenberg had wrongfully taken from one of his laborers the evening before; that Rosenberg denied having taken the said money, and ordered the defendant out of his store; that upon repeating his demand for the money, Rosenberg struck the defendant, and that Rosenberg's son, wife and his clerk were holding him, and beating him when a pistol was fired; that the first shot went up in the roof of the house; that as the defendant was being held by Rosenberg's son, wife and clerk, Rosenberg came from from the back part of the store, and was advancing upon him with a knife, and when he refused to stand back, he, the defendant, fired on him. This testimony was contradicted by the testimony for the State. The portions of the court's general charge, to which exceptions were reserved, are copied in the opinion. The defendant requested the court, among others, to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (26.) "If Isaac Rosenberg kept a public storehouse in which goods and merchandise were sold to any and every one, and if the defendant went to the storehouse of said Rosenberg on business, and if the defendant was free from all fault in bringing on any difficulty with said Rosenberg, and if said Rosenberg made an assault, together with his wife and clerks, upon the de [Horn v. The State.] no reasonable shot at said fendant, and if defendant had had means of retreat, or fired the Rosenberg under the belief that he had no reasonable means of retreat, or that in retreating he was in imminent peril of his life or limb, or if, at the time, said Rosenberg was advancing upon him with a dangerous weapon, and defendant was held by one of the clerks of Rosenberg so that he could not retreat, he had the right, under the law, to use enough force to repel the said assault, and if the jury believe that it was necessary under the evidence, for the defendant to kill said Rosenberg in order to protect himself, then the jury ought to acquit the defendant of an assault with intent to murder, and may find the defendant not guilty as charged in the indictment." (25.) "If the defendant went to the store of Isaac Rosenberg, and entered the same peacefully, and did nothing to produce a difficulty, and Rosenberg thereupon assaulted the defendant, and the defendant shot at Rosenberg while said Rosenberg was assaulting the defendant, and the defendant was held and was not able to retreat, and while so held shot at said Rosenberg under the honest belief that he was in danger of great bodily harm or of imminent peril to life or limb, the defendant had a right to shoot, and the jury must acquit the defendant.' (14.) "If the jury believe from the evidence that the defendant went to the store of Isaac Rosenberg on business, and that Isaac Rosenberg assaulted the defendant without provocation, the defendant being without fault in bringing on the difficulty, and that the defendant was in great danger of great and serious bodily harm, or that the defendant believed honestly that his life was in imminent danger, and that to retreat would greatly imperil his life or limb, then the defendant had the right to protect himself so far as necessary to repel the assault, and if it was necessary in order for him to repel the assault for him to shoot said Rosenberg, the defendant is not guilty, and the jury ought to acquit him." (15.) "If from the evidence, the jury believe that the defendant went to the store of Isaac Rosenberg on lawful business, and there got in a fight with said Rosenberg and his family, without doing anything to provoke, and being without fault in bringing on the difficulty, and if, while in said fight, it became so that he could not retreat without |