CASES IN THE SUPREME COURT OF ALABAMA NOVEMBER TERM, 1901. Mann . The State. Indictment for Murder. 1. Organization of jury; right of solicitor to examine juryman on voir dire.-Where, in the organization of a petit jury for the trial of a capital case, one of the persons whose name is drawn, upon his examination voir dire, answers that he would convict on circumstantial evidence if the evidence proved the crime beyond a doubt, it is competent for the State to further ask said juryman: "Suppose the evidence was such that, while it left some doubt in your mind, still your mind was satisfied beyond a reasonable doubt, would you convict then?" 2. Trial and its incidents; right of solicitor for the State to make a statement upon the opening of the case as to what he expects the evidence to show. It is competent for the solicitor upon the opening of a criminal case, to make a preliminary statement as to what the State expects the evidence to show, and in this way state to the jury the case as he proposes and expects to present it to them on the evidence. 3. Trial and its incidents; objection addressed to discretion of court. On the redirect examination of a witness, the fact as to whether or not a question propounded to him is in rebuttal, is addressed to the sound discretion of the trial court, and will not be reviewed on appeal. 4. Same; same. As to whether or not a solicitor for the State should be permitted to lead a witness in his examination, is a matter addressed to the discretion of the court; and it is not error for the court, upon being requested by the solicitor for permission to lead a witness, to reply in the presence of the jury that he would permit the witness to be led, inasmuch as he thinks "he is an unwilling witness." [Mann v. The State.] 5. Evidence; right to refresh memory of witness.-It is not error for the court to permit a witness to be asked whether he did not testify to certain facts on the preliminary trial of the defendant, when such question is asked solely for the purpose of refreshing the witness's memory. 6. Same; when not error to refuse to allow certain questions to be answered.-Where it appears, in the trial of a criminal case, that a witness for the defendant had testified to every fact within his knowledge having any pertinent and legal bearing on the case, it is of no consequence that the court did not aìlow him to answer questions as to how certain conversations between him and the deceased arose. 7. Pleading and practice; no adverse inference to be drawn from failure to introduce witness.-The failure of a party to introduce a witness affords no ground for argument or inference unfavorable to such party, and the fact that a witness has been subpoenaed by that party and is in attendance is immaterial; and, therefore, it is not competent for the detendant in a criminal case, on the examination of a witness introduced by him, to show that said witness was subpoenaed by him. 8. Homicide; question properly refused which assumes facts not shown to exist.-On a trial under an indictment for murder, where the evidence tended to show that immediately upon the defendant aemanding an apology from the deceased, he fired upon the deceased, it is not competent for the defendant to ask one of his witnesses how many minutes elapsed between the demanding of the apology and the firing upon the deceased by the defendant; such question assuming that some minutes elapsed. 9. Homicide; admissibility of evidence as to physical condition of defendant and deceased.-On a trial under an indictment for murder, where there was evidence introduced going to show that the deceased was a strong, robust man physically, and that the defendant was weak and delicate, further inquiry as to how it came to pass that the defendant was not robust and strenuous is immaterial and is properly refused. 10. Same; admissibility of evidence.-On a trial under an indictment for murder, the length of time the defendant had lived in the city when the homicide was committed, the length of time he had known the deceased, and the place of his marriage were irrelevant and impertinent facts, and questions calling for such facts are properly disallowed. 11. Same; same.-On a trial under an indictment for murder, it is competent for the State to ask the defendant, upon cross ex [Mann v. The State.] amination as a witness, if he did not get the pistol for the purpose of making the deceased apologize for an insult which he had offered the defendant. 12. Same; same.-On a trial under an indictment for murder, it is not competent for the defendant to testify as to whether in his opinion there was a reasonable method of escape without exposing himself to great danger, or as to whether he had retreated as far as he could without exposing himself to great danger; such questions being for the jury to determine upou all the facts introduced. ì.. Same; same. On a trial under an indictment for murder questions calling for the conclusions of the defendant, who was being examined as a witness, are properly disallowed. 14. Same; same.-On a trial under an indictment for murder, where the evidence tended to show that the defendant demanded an apology from the deceased and immediately shot him, it is competent for the State to prove by the judge before whom there was a preliminary trial of the defendant, what the defendant said on the preliminary trial was his desire and intention when he demanded the apology from the deceased; such statement on the part of the defendant tending to show malice, premeditation and formed design on his part. 15. Evidence; competency of map or diagram.-On a trial in a criminal case, where the defendant has, during his examination, made a diagram of his office which ne used during his examination, it is competent for the State to introduce such diagram in evidence. 16. Homicide; charge of court to jury.—Charges to the jury upon self defense, which fail to instruct the jury as to the constituents of self defense, are erroneous and properly refused. 17. Same; same.-On a trial under an indictment for murder, charges as to self defense which pretermit all reference to the duty of retreat are erroneous and properly refused. 18. Same; same. In a criminal case, a charge is erroneous and properly refused, which instructs the jury that "uniess the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, they must acquit him." 19. Same; same.-On a trial under an indictment for murder, a charge to the jury which authorizes the acquittal of the defendant upon a reasonable doubt engendered by the testimony of the defendant alone, is erroneous and properly refused; since such doubt may be entirely allayed and removed by the other evidence in the case. [Mann v. The State.] 20. Charge of court to jury; sufficiency of evidence. In a criminal case, charges are erroneous and properly refused which instruct the jury that "if after weighing all the evidence you can not say beyond a reasonable doubt which is the heavier, that for the State or that for the defendant, then it is your duty to acquit the defendant;" and "if the evidence for the State shows that the defendant is guilty, but the evidence for the defendant shows equally tnat he is not guilty, and you so find, this would leave your mind in equipoise, and it would be your duty to acquit the defendant." APPEAL from the City Court of Mobile. Tried before the Hon. O. J. SEMMES. The appellant, Charles B. Mann, was indicted and tried for the murder of David Dickson, was convicted of murder in the second degree, and sentenced to fifteen years in the penitentiary. During the organization of the petit jury for the trial of the case, George Stewart was drawn as a juror, and in answer to the question propounded to him by the court answered that he would convict on circumstantial evidence "if the evidence proved the crime beyond a doubt." Thereupon the solicitor asked said Stewart the following question: "Suppose the evidence was such that while it left some doubt in your mind, still your mind was satisfied beyond a reasonable doubt, would you convict then?" The defendant objected to the solicitor asking this question, the court overruled the objection, and the defendant duly excepted. The said Stewart answered that the evidence could be strong enough for conviction. Thereupon the State challenged said Stewart peremptorily. The bill of exceptions contains the following recitals as to the opening statement of counsel: "During the course of the opening statement of counsel, the defendant's counsel having stated what he expected the evidence would show as to the reasons which actuated the defendant at the time of the homicide, the solicitor in reply stated 'The State expects the evidence to show that when the defendant was asked on habeas corpus trial as to what he had reference to when he told the deceased "you must get down on your knees and apologize," he tes |