laws en bloc have been considered. In Chrisman v. City of Jackson, 84 Miss. 787, 37 South. 1015, an ordinance of the sort was sustained. But legislative enactment had prescribed that "all offenses against the criminal laws of this state, occurring within the limits of said corporation, not amounting to a felony, shall be deemed violations of the ordinances of the city of Jackson and punishable as such." There is no occasion to question the legislative power there exercised. In the later case of Town of Oakland v. Miller, 90 Miss. 275, 43 South. 467, the Supreme Court of Mississippi considered an ordinance in these words: "Be it or dained by the mayor and board of aldermen of the town of Oakland, state of Mississippi, that all acts punishable under the laws of the state of Mississippi, when committed within the municipality of the village of Oakland, are hereby declared to be offenses against said town and punishable," etc. The ordinance was said to be manifestly void, for the reason that it included felonies as well as misdemeanors; the statute having limited the jurisdiction of municipalities to the punishment of misdemeanors. The line of discrimination which might have been applied to that case to save the ordinance was entirely plain-the line between felonies and misdemeanors. But the court refused to draw it. The judgment was that the line must be drawn in the ordinance itself. The case in hand involves an identical principle. The ordinance under consideration is even more clearly bad, for the reason that the line to be drawn is itself doubtful and not well defined. That it goes beyond the power of the municipality seems clear. It is supposed that the case of Kettering v. Jacksonville, 50 Ill. 39, decided by the Supreme Court of Illinois in 1869, holds to the contrary of what has been said. The following language of the decision in that case furnishes all the information we have of the question there presented and decided: "It is said that the ordinance in question prohibits not only the sale of liquor by retail, but by wholesale, and therefore cannot be sustained as a police regulation. But this prosecution was for the sale of beer by the glass, in what is called a 'saloon,' and therefore does not involve the question of the power of the city to forbid its sale as an article of commerce, to be carried be yond the limits of the city, or used for mechanical or domestic purposes. Such a case is not before us. The facts which are presented by the record not only show a violation of the terms of the ordinance, but a violation of such a character as to be clearly within the constitutional reach of the city prohibition. The ordinance may be too comprehensive in its provisions, and covers cases which the city has no power to control; but that is no reason why we should power of the city is unquestionable." This language affords every indication that the case presented was the not unusual case of a valid statute or ordinance limited in some applications by paramount law. Such was also the case in Harbaugh v. Monmouth, 74 Ill. 367. The Kettering Case was cited by this court with approval in Ex parte Cowert, 92 Ala. 94, 9 South. 225. We have other cases to the same effect. Shelton v. Mobile, 30 Ala. 540, 68 Am. Dec. 143; Ex parte Byrd, 84 Ala. 17, 4 South. 397, 5 Am. St. Rep. 328. We intend to cast no sort of discredit upon those cases. Their doctrine is perfectly sound. But they are without influence in the case at bar. The ordinance considered in those cases clearly told the citizen what he must not do. But here the offense is defined neither by inclusion nor exclusion. The offenses to be included, as well as those to be excluded, are alike undefined. If the ordinance had said all acts injurious to the health, morals, or peace of the community are hereby prohibited, the courts are competent to determine in each case as it might arise whether the act charged violates so general an ordinance. But would such an ordinance meet the requirement of certainty? Would its promulgation convey information of any definite legislative purpose? If so, there has been a vast expenditure of useless effort in this country in the framing of municipal codes. True, the ordinance prohibits only those acts now prohibited by statute or common law; but this does not narrow the field of inquiry, because it still remains to be determined whether any particular statute or common-law principle has relation to any purpose which may be enforced by municipal ordinance. The judgment of the legislative branch of the government is not expressed. The citizen must judge for himself, at the peril of becoming a violator of law if he makes a mistake, in a matter about which the courts are often not in accord. Such an ordinance is void. The considerations already adverted to suffice for the disposition of this appeal. We are advised, however, that there were a number of cases pending in the inferior court of criminal jurisdiction in the city of Birmingham, and others in the criminal court of Jefferson county, to which lastnamed court they were removed from the police court under the statute, at the time this appeal was taken, brought under other sections of the Municipal Code of that city, which await the disposition of this case, and which depend upon questions other than those we have already considered. One of those questions is involved in this appeal, has been argued by counsel, and may with propriety have consideration at this time. The act creating the inferior court of criminal jurisdiction in the city of Birming An order will be entered here discharging the appellant. issue warrants of arrest. It is argued that court of criminal jurisdiction in the city of the issue of warrants of arrest is a judicial Birmingham, or the police court of Birmingpower, which can be conferred only upon ham, as the court in which this prosecua judicial officer. It implies the power and tion was commenced is known in the act of the duty to hear and determine the question its creation. It appears, however, that, of probable cause. The principle of this even if the argument for the abolition of the contention was long ago disposed of by the police court be tenable, the Municipal Code decisions of this court. In Ex parte Gist, law had not under its terms had that effect 26 Ala. 156, it was argued with great learn- at the date when this prosecution was being that the section of the judiciary act of gun; its operation being postponed to a the United States conferring power upon later date. The question here presented is justices of the peace to arrest, imprison, or therefore prematurely presented, is moot, bail persons charged with a violation of the and cannot now be considered. criminal law of the United States, was repugnant to the Constitution of the United States for the reason that it conferred judicial power upon one not an officer of the United States, whereas that Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and such other inferior courts as Congress may, from time to time, ordain and establish. This court, conceding that the power and authority conferred was judicial in its nature, held that it did not fall within the meaning of "judicial power" in the sense in which that term is used in the Constitution of the United States. And the Reversed and rendered. DOWDELL, C. J., and ANDERSON, McCLELLAN, and EVANS, JJ., concur. (165 Ala. 59) BARNETT v. STATE. (Supreme Court of Alabama. June 30, 1909. Rehearing Denied Dec. 16, 1909.) 1. STATUTES (§ 82*)-ENACTMENT-INVALIDITY -LOCAL LAWS-CONSTITUTIONAL RESTRICTIONS. purporting to amend Act Feb. 15, 1899 (Acts Act July 19, 1907 (Loc. Acts 1907, p. 498), 1898-99, p. 878), and providing that in capital cases a defendant should not be put upon trial within five months from the time of the alleged offense, is void under Const. 1901, § 106, providing that no local law shall be passed, unless proof by affidavit that the notice required by this section has been given is spread upon the journal, where the journal showed an affidavit that the "above" notice was published, but did not contain a copy of the notice. see Statutes, [Ed. Note.-For other cases, ITY LOCAL LAWS-CONSTITUTIONAL RE- Act Dec. 9, 1896 (Acts 1896-97, p. 262), created the T. county law and equity court, and by section 28 required the first continuance of a capital case to be at least five months, except by defendant's written consent. Act Feb. court referred to the case of Gaines v. Harvin, 19 Ala. 491, where a similar provision in our Constitution came under review, and where it was held that it was not the intention of the framers of the Constitution to deny to the Legislature the power to confide to ministerial officers, who do not constitute a part of the judiciary, properly so called, many duties involving inquiries in their nature judicial. In the case referred to it was said: "The practice of this as of all other governments having their judicial, executive, and legislative departments separate and distinct very clearly shows that, in the administration of laws, inquiries partaking of the nature of judicial investigations are confided to persons other than judges, whose acts have never been ques-15, 1899 (Acts 1898-99, p. 878) amended sectioned on constitutional grounds"-and more in the same line. The statute in this case conferred no power upon the clerk to finally hear and determine, nor even to commit to bail, but only to issue warrants, which must be construed to authorize him to issue warrants on probable cause, sup ported by oath or affirmation, and returnable, by necessary implication, to the court from which they are issued. We are not prepared to say that this was an unconstitutional exercise of power. In re Siebert, 61 Kan. 112, 58 Pac. 971; State v. Sureties of Krohne, 4 Wyo. 347, 34 Pac. 3; In re Durant, 60 Vt. 176, 12 Atl. 650. We are also requested to consider whether the act approved August 13, 1907, and commonly known as the "Municipal Code Law," had the effect to abolish the inferior tion 28 so as to forbid one accused of a capital crime to be tried in less than five months, except by his written consent. Act Dec. 13, 1900 (Acts 1900-01, p. 714), amends sections 2 and 25, providing for the continuance in office of the "judge of the T. county law and equity court, now designated by amendment as the "T. county court." Act Oct. 1, 1903 (Loc. Acts 1903, pp. 309, 310), is entitled "An act to amend an act to establish the T. county law and equity court," etc., and provides "that section 28 of said act, as amended by act approved February 15," shall be repealed. Held, the act of 1903 requirement of Const. 1901, § 106. that a cerwas not invalid for failure to comply with the tain notice shall be published of all local acts before their introduction; the grounds of objection to the notice being that the notice referred to the act amended as that creating the T. county "law and equity" court, which was no longer the title of the court, and that it stated the purpose of the act to be to repeal "section 28, so that capital cases can be tried at any time as amended by act approved February 15, 1899, after indictment found," since the original act was still in existence, and was properly referred 8. CRIMINAL LAW (§ 1137*)-APPEAL-ESTOP- In a prosecution for homicide, the state cannot claim error in allowing a witness to make a certain statement, where on cross-examination it brought out the same statement. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.*] 4. HOMICIDE (§ 171*)-EVIDENCE-ADMISSIBIL ITY. In a prosecution for homicide, testimony that a certain person was not present at the time of the killing, but was in Oklahoma, was properly excluded as irrelevant. [Ed. Note. For other cases, see Homicide, Dec. Dig. § 171.*] 5. CRIMINAL LAW (§ 404*)-EVIDENCE-ADMIS SIBILITY. ties, shedding some light on the motive which brought about the killing. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 321; Dec. Dig. § 166.*] 11. WITNESSES (§ 337*)-IMPEACHMENT-CHARACTER-ACCUSED. In a prosecution for homicide, where defendant testified, the state was properly allowed to introduce evidence as to his general character. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129; Dec. Dig. § 337.*] 12. CRIMINAL LAW (§ 378*)_ EVIDENCE CHARACTER OF ACCUSED CROSS-EXAMINATION. In a prosecution for homicide, where defendant's witness testified that defendant's general character in the community in which he lived was good, it was proper to ask him on cross-examination if he had not heard that prior to the shooting defendant had a difficulty with the party on the road and shot him. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 842; Dec. Dig. § 378.*] 13. CRIMINAL LAW (§ 721%*) - TRIAL - REMARKS OF COUNSEL. In a prosecution for homicide by shooting, it was proper to allow the clothes which decedent was wearing when killed to be exhibited to the jury, showing the location of the shot. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 8 1673; Dec. Dig. § 7212.*] Cent. Dig. 891; Dec. Dig. § 404.*] In a prosecution for homicide, it is not permissible for counsel to comment on the failure to examine a witness who was accessible to both parties. 6. HOMICIDE (§ 175*)-EVIDENCE-ADMISSIBIL ITY. In a prosecution for homicide, testimony as to the nature of decedent's wounds, the blood on his clothing, and as to the finding of a cartridge near his house, was admissible as tending to show what caused his death. [Ed. Note. For other cases, see Homicide, Cent. Dig. 375; Dec. Dig. § 175.*] 7. CRIMINAL LAW (§ 413*) — EVIDENCE — AD MISSIBILITY. In a prosecution for homicide, it was proper to refuse to allow a witness to state whether defendant told him after the shooting that he was going to town to surrender to the sheriff, since the defendant could not make testimony for himself in that way. [Ed. Note. For other cases, see Criminal Law, 14. HOMICIDE (§ 300*)-TRIAL-INSTRUCTIONS. In a prosecution for homicide, it was proper to refuse instructions requested by defendant which failed to hypothesize freedom from fault in the defendant in bringing on the difficulty. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 627-630; Dec. Dig. § 300.*] Dowdell, C. J., and Simpson and Denson, JJ., dissenting. Appeal from Tuscaloosa County Court; Henry B. Foster, Judge. Lee Barnett was convicted of murder, and appeals. Affirmed. Collier & Scrivener and Henry Fitts, for appellant. Alexander M. Garber, Atty. Gen., [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.*] and Thomas W. Martin, Asst. Atty. Gen., for 8. HOMICIDE (§ 171*)-EVIDENCE-ADMISSIBILITY. In a prosecution for homicide, where the testimony of the state related entirely to the circumstances of the shooting and the nature of the wounds inflicted, testimony by the defendant as to his purchase of oil, who poured it out, and whether he sent it home, which was not in answer to any testimony introduced by the state, was irrelevant. [Ed. Note. For other cases, see Homicide, Dec. Dig. § 171.*] 9. CRIMINAL LAW (§ 413*)-EVIDENCE-ADMIS SIBILITY. In a prosecution, where the state offered no evidence of flight, it was proper to refuse evidence that defendant surrendered himself to the sheriff, or as to who went to town with him. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 931; Dec. Dig. § 413.*] 10. HOMICIDE (§ 166*) — EVIDENCE-ADMISSI the State. SIMPSON, J. The appellant was indicted for murder in the first degree, and convicted of murder in the second degree. The trial was had within less than five months after the commission of the offense, and before going into the trial the defendant claimed the benefit of the special act in regard to Tuscaloosa county, and objected to being put on trial because five months had not elapsed since the commission of the offense. The act of July 19, 1907, purporting to amend a previous act, and, among other things, providing that, in capital cases, a defendant should not be put upon trial within five months from the time of the commission of the alleged offense (Loc. Acts 1907, p. 498), is void, on account of the failure to In a prosecution for homicide, where there comply with the requirements of section 106 was no effort to prove the particulars of the of the Constitution of 1901. The journals difficulty, it was proper to allow the state to show an affidavit that "the above notice was ask defendant whether he and decedent had a difficulty the evening before the shooting, as it published," etc.; but the notice is not set out is always permissible to show previous difficul- in the journal. The appellant contends that BILITY. such provision is the law of that court at constitutional requirement. No one could any rate, because the act of 1903, which pur- have been deceived by this notice, for it ported to repeal the same section in a for- states distinctly that said section 28 is to be mer act, is itself void, for failure to comply repealed, and the notice might have stopped with the same constitutional provision. The there. The mere statement as to what is to various acts in regard to said court are as be accomplished by this repeal does not affollows: fect the validity of the notice. A reference to the act would show exactly what would be accomplished by said repeal. In the case of Green v. State, 143 Ala. 2, 39 South. 362, this court held that the notice was sufficient as to one of the other sections of the act, but did not pass upon this section 28. We hold now that the notice was sufficient as to section 28, and it now stands repealed. The court was organized by the act of December 9, 1896, entitled "An act to establish the Tuscaloosa county law and equity court" | (Acts 1896-97, p. 262), and section 28 of that act provides that in capital cases, or cases involving punishment by imprisonment for five years or more, if the cause is continued, the first continuance shall be for not less than five months, unless the defendant consent thereto in writing." By the act of February 15, 1899, said section 28 was amended so as to read: "That no defendant shall be put upon trial for any offense which may be punished capitally, within five months from the time of the commission of the alleged offense, unless the defendant consent thereto in writing, for a trial within a shorter time." Acts 1898-99, pp. 878, 880. The act of December 13, 1900, amends sections 2 and 25, providing for the continuance in office of the judge "of the said Tuscaloosa law and equity court, now designated, by amendment, as the Tuscaloosa county court." Acts 190001, p. 714. The act of October 1, 1903, is entitled "An act to amend an act to establish the Tuscaloosa county law and equity court," etc., and among other things provides: "That section 28 of said act as amended by act approved February 15, 1899, be and the same is hereby repealed." Loc. Acts 1903, pp. 309, 310. There was no error in overruling the objection to the question to the witness Mrs. Garrison as to what Barnett (the defendant) said just immediately before the shooting, and as to what was said to him at the same time. This was a part of the res gestæ, and served to explain the motives of the defendant's action, and the causes which led up to the killing. Collins v. State, 138 Ala. 57, 34 South. 993; Viberg v. State, 138 Ala. 100, 35 South. 53, 100 Am. St. Rep. 22. The defendant asked the witness Mrs. Garrison (widow of the deceased), on crossexamination, if it was not a fact that Mr. Barnett very often passed along by her front steps, going to and fro to slop his hogs. The witness answered, "Yes, he went there often to slop his hogs; but I never knew him to slop them that soon in the morning." The defendant moved to exclude all that part of the answer, "but I never knew," etc., and the court overruled the objection. If this was error, it was without injury, as the state, on re-examination, brought out the same statement, and it was legal testimony. One witness stated, in answer to a question on cross-examination, that one Crosby was not there, at the time of the shooting, but was in Oklahoma. It was entirely ir Oklahoma, and there was no error in sustaining the objection to that question. There was no error in allowing the clothes, which deceased was wearing when killed, exhibited to the jury, showing the location of the shot, etc. Holley v. State, 75 Ala. 14, 18. The same is true with regard to the testi It is first insisted that the notice does not show what act was intended to be amended or repealed. It will be noticed that the original act of 1896 has never been repealed. The amendatory acts have merely amended certain sections of that act, and, although by a later act the name of the court was chang-relevant how long said Crosby had been in ed to the "Tuscaloosa county court," yet, for purposes of amendment, it is proper to refer to the act creating the Tuscaloosa law and equity court, as the notice did. The notice also states, as one of the purposes of the bill to be introduced, that said act is to be amended "by repealing section 28, as amended by act approved February 15, 1899, so that cap-mony as to the nature of the wounds, blood ital cases can be tried at any time after indictment found." It is claimed that capital cases were then allowed to be tried at any time after the indictment found, with the consent of the defendant, and that this notice does not contain the substance of the proposed amendment, but should have stated that the section of the act was to be repealed, so that the defendant could be tried at any time after indictment found, without his consent. It is unnecessary to refer to the many deliverances which have been made by this on the clothing of deceased, and to the finding of a cartridge near the house of deceased. These were all circumstances tending to show what brought the deceased to his death, and, if there was no evidence showing what kind of a gun the defendant had, these facts could not prejudice him. There was no dispute about the fact that the defendant shot the deceased. There was no error in sustaining the objection to the question to the witness Ellison as to whether Barnett told him, after the shooting, that he was going to town to sur not make testimony for himself in that way. | court did not err in regard to the comments Ferguson v. State, 134 Ala. 64, 70, 32 South. 760, 92 Am. St. Rep. 17. The questions to the defendant, as a witness, by his counsel, as to whether he bought any oil at the store, who poured it out, and whether he sent it home, called for irrelevant testimony, and there was no error in sustaining objections to them. The testimony of the state related entirely to the circumstances of the shooting, the nature of the wounds inflicted, etc., and the Avidence last referred to was not in answer o any testimony introduced by the state. The state did not offer any evidence of flight, and consequently there was no error in sustaining the objection to the question to the defendant as to whether he surrendered himself to the sheriff. Pate v. State, 94 Ala. 14, 10 South. 665. It was equally irrelevant as to who went to town with the defendant. There was no error in permitting the state to ask the defendant whether he and Barnett had a difficulty the evening before the shooting. There was no effort to prove the particulars of the difficulty, and it is always pernissible to show previous difficulties, shedding some light on the motives which brought about the killing. The defendant having been examined as a witness, the state was properly allowed to introduce witnesses as to the general character of the defendant. This examination related merely to his general character, as bearing upon his credibility, and that was the extent to which the state could inquire into his character. The defendant then in troduced a witness, who testified that he knew the general character of the defendant in the community in which he lives, and that it is good; also that he had never heard anything against him, and that his general character for truth and veracity was good. On cross-examination, the state asked said witness: "Have you not heard, and did you not hear, before Mr. Garrison was killed, that the defendant, Barnett, had a difficulty with a party on the road and shot him?" This question was objected to, and the objection overruled. It is the opinion of the writer, and of DOWDELL, C. J., and DENSON, J., that in this the court erred. The defendant's character for peaceableness or the contrary had not been put in issue by the defendant himself, and the state could not inquire into his character in that regard. 1 Wigmore on Evidence, pp. 125, 126, § 57. The majority of the court, however, to wit, ANDERSON, MCCLELLAN, MAYFIELD, and SAYRE, JJ., hold that the admission of this testimony was proper, in reply to the examination by the defendant on general character. It is not permissible for counsel to comment on the failure to examine a witness who was accessible to both parties, and the of defendant's counsel in that particular. Crawford v. State, 112 Ala. 3, 21 South. 214. The charges requested by the defendant, besides other defects, fail to hypothesize freedom from fault in the defendant in bringing on the difficulty, and were properly refused. Harrison v. State, 144 Ala. 21, 40 South. 568; Mitchell v. State, 133 Ala. 66, 32 South. 132. The judgment of the court is affirmed. ANDERSON, MCCLELLAN, MAYFIELD, and SAYRE, JJ., concur. DOWDELL, O. J., and SIMPSON and DENSON, JJ., dissent. (165 Ala. 121) SCRUGGS v. STATE. (Supreme Court of Alabama. Dec. 16, 1909.) 1. CRIMINAL LAW (§ 678*) — CRIMINAL RESPONSIBILITY-EVIDENCE-ELECTION. The fact that the owner was not positive as to when he saw accused hunting on his land without permission, but thought that it was after Christmas, and the fact that a witness who did not show separate and distinct offenses, so was there but once fixed the time in November as to require an election; but the court, sitting as a jury, might find that the owner and the witness referred to the same offense. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. $ 678.*] 2. CRIMINAL LAW (§ 1120*)—APPEAL-RECORD -QUESTIONS REVIEWABLE. Where the record fails to show a redirect examination of a witness, the error, in overruling a motion to exclude parts of the testimony of the witness on redirect examination, will not be considered. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2931; Dec. Dig. § 1120.*] 3. CRIMINAL LAW (§ 254*) - EVIDENCE-SUF FICIENCY. Where the state's evidence was sufficient to go to the court, sitting as a jury, to create reasonable inferences of the guilt of accused, the refusal to exclude all of the state's evidence was not erroneous. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 254.*] 4. CRIMINAL LAW (§ 1158*)-APPEAL-FINDINGS-CONCLUSIVENESS. A finding by the court, sitting without a jury, on oral testimony of witnesses appearing in court, will not be reversed, unless plainly |