[Surginer v. The State.] sued by Yarbrough or Campbell, was to fight one Yarbrought at a time, then if Walter and Will Yarbrough appeared upon the scene and engaged Campbell, after he and Bert had commenced to fight, then I charge you that the right of self defense revived, or came into existence in favor of Campbell, against Will and Walter Yarbrougth." W. R. WALKER, for appellant.-Where the evidence shows, or tends to show that the defendant acted in self defense under reasonable apprehension that his life was in danger, or that he was in danger of great bodily harm, because of some act of the deceased done at the time, the character of the deceased as a violent, turbulent, dangerous, or bloodthirsty man may be shown.-5 Am. & Eng. Ency. Law, (2d ed.), 872; Brown's Case, 74 Ala. 42, and cases cited; Franklin's Case, 29 Ala. 14; Storey's Case, 71 Ala. 329; DeArman's Case, 71 Ala. 351, 360; 1 May. Dig., 668. One, though a stranger, may commit a homicide, in order to prevent a forcible and atrocious crime, and such homicide is justifiable.-9 Am. & Eng. Ency. Law, (1st ed.), 538; 1 Russell on Crimes, *549; Nole's Case, 26 Ala. 31; Oliver's Case, 17 Ala. 587; 4. Black. Com. 180; Neagle's Case, 135 U. S., 1, 34 L. Ed. 55; 1 Whart. Am. Crim. Law, § 1019; Ball's Case, 38 E. C. L. 19 and note; Evan's Case, 120 Ala. 269; Tucker's Case, 46 L. R. A. 181; Bostick's Casc, 94 Ala. 45; Simpson's Case, 59 Ala. 1; Storey's Case, 71 Ala. 329; Thomas' Case, 126 Ala. 4; Wood's Case, 128 Ala. 27. When an affray is in progress any private person may interfere to separate the combatants, and may use such force as may be necessary to accomplish the same. 1 Russ. on Crimes, 272; 2 Am. & Eng. Ency. of Law, 49; 1 Am. & Eng. Ency. Law (2d ed.), 918; Cole's Case, 4 Park, Cr. Rep., (N. Y.), 35. The general rule is that all evidence is relevant and admissible which is confined to the points in issue, and all circumstances are admissible which tend to establish a fact material to the prosecution or defense, or from which a presumption or inference can be reasonably drawn in reference to a material fact or inquiry in [Surginer v. The State.] the case, or involved in the issue.-Jordan's Case, 81 Ala. 20; Churchwell's Case, 117 Ala. 124; Domingus' Case, 94 Ala. 9; Dismuke's Case, 83 Ala. 287; Kennedy's Case, 85 Ala. 326; Ala. Grt. Sou. R. R. Co., v. Hawk, 72 Ala, 112; Henderson's Case, 70 Ala. 29; McManus' Case, 36 Ala. 285; Campbell's Case, 31 Sou. Rep. 802; Gandy v. Humphries, 35 Ala. 617; Smith's Case, 52 Ala. 407. CHAS. G. BROWN, Attorney-General, for the State. One cannot intervene in a difficulty between others and defend on the ground of imminent danger to life or limb to one of the combatants tho' a brother, unless the one in whose behalf he intervenes could have made such defense, and to justify such intervention in defense, or prevention of a felonious assault on a third person, that person must be in position to invoke the doctrine of self-defense. If he provoked or encouraged the difficulty, or willingly entered into it, he must have clearly manifested a desire and intention to retire from the conflict, and even then the person intervening in his behalf would not be justifiable if he struck the blow, or fired the shot in pursuance of a design to assist him in the event of a difficulty.-Wood v. State, 128 Ala. 27, and authorities cited; Bostick v. State, 94 Ala. 45, 48, 49. And one who fights willingly, or by mutual agree ment, or consent, or who provokes, or willingly enters into the combat, cannot invoke the doctrine of self de fense unless he had retired from the conflict, abandoned the combat and retreated in good faith. There must be a real and bona fide surrender and withdrawal on his part before he can invoke the doctrine of self defense. Parker v. State, 88 Ala. 6; Sullivan v. State, 102 Ala. 136. When defendant is at fault in bringing on the difficulty evidence of the general character of his combatant for violence, etc., is not admissible.-Rufus v. State, 117 Ala. 131; Johnson v. State, 69 Ala. 233; Page v. State, 69 Ala. 229; Brown v. State, 74 Ala. 42. [Surginer v. The State.] SHARPE, J.-In a quarrel which first arose between defendant and one or more of three brothers Yarbrough, defendant's brother-in-law Campbell sided with him and fought with Bert Yarbrough. Walter and Will Yarbrough engaged either in attempting to separate those combatants or in fighting Campbell, and while the latter was underneath Bert Yarbrough fighting and being fought, defendant by separate shots wounded each of the Yarbroughs. This prosecution is for the shooting of Will Yarbrough. In behalf of the State a physician testified he attended Bert Yarbrough's wound about thirty days and then dismissed him; that two or three months after the shooting Bert Yarbrough had typhoid fever and died. Thereupon the State was allowed against objection to elicit as evidence the physician's opinion that the wound inflicted on Bert Yarbrough contributed to his death. The contributory effect of his wound in producing the death of Bert Yarbrough was not a matter pertaining to the res gestae of the offense charged. The testimony concerning it had no tendency to prove either the fact, manner or motive of the shooting of Will Yarbrough and could not have properly assisted in determining whether the defendant was guilty of murderously assaulting Will Yarbrough. This testimony was therefore irrelevant. Its admission involved error which may have operated to defendant's prejudice and therefore the judgment must be reversed. Whether evidence as to the ultimate effect on Bert Yarbrough of his wound alone as disconnected from other cause would have been admissible, is not a question raised or decided. The right of one to use violence in defense of another is recognized by the law only where the imperilled person would have been legally justifiable in using like violence in his own defense, and in no case is a necessity for acting in self-defense regarded as ground for an acquittal unless the person seeking shelter thereunder was free from fault in bringing on the difficulty, or had retired therefrom and was thereafter assailed.-Gibson v. State, 94 Ala. 64; Bostic v. State, 94 Ala. 45; Wood v. State, 128 Ala. 27. That Campbell was not free from falt in that respect was proved by undisputed evidence, [Thomas v. State.] and this is so whether the difficulty be considered as had with one or with the three Yarbroughs, for the tes timony including that of Campbell himself leaves no room for doubt that he not only entered willingly into the fight with one, but on the same occasion made an aggressive announcement with reference to the other two brothers calculated to provoke hostile action their part. on Only in connection with evidence tending to establish a right to shoot in defense of himself or Campbell could the defendant have been entitled to prove the Yarbroughs were generally known to be dangerous, and there being no such evidence, defendant's offer to make such proof and requested charges third to sixth, inclusive, as well as the eighth charge were properly rejected. The other rulings, both on matters of evidence and charges, to which exceptions were reserved, were plainly correct. Reversed and remanded. Thomas v. State. Indictment for Robbery. 1. Organization of petit jury for trial of capital case in the City Court of Montgomery.-Under section 10 of the act ap-. proved March 2, 1901, "to more effectually secure competent and well qualified jurors in the county of Montgomery" (Acts of 1900-1901, p. 1994) where, in the drawing and empannelling of a jury for the trial of a capital case some of the jurors, whose names are drawn for the trial of such case were serving upon a jury which was out considering a veraict in another case, and the names of such jurors when drawn are laid aside, if, after exhausting the list of names drawn and summoned for the trial of such case the jury is still incomplete, and those jurors whose names had been drawn and laid aside had returned into court with a verdict, and were, therefore, ready to serve as purors in [Thomas v. State.] said pending case, and before an order is made for the drawing and summoning of talesmen, it is not error for the court to require the names of said jurors, which had been so laid aside, to be put again into the hat, and for the drawing of the jury to proceed; and if from these jurors the jury in the case is completed, the defendant obtains a jury to try nis case from the special venire drawn and summoned for the trial of his case, and has no ground for complaint. 2. Robbery; when no duress shown; sufficiency of evidence.— Un a trial under an indictment for robbery, it was shown by the evidence that the defendant went to the place where the robbery was committed, in company with one J., and said J. drew his pistol and caused the persons present at such place to hold up their hands and then requested or commanded the defendant to search them, while he, J. eld the pistol drawn; that the defendant did as directed by J. and turned over all the money obtained by him from the search to said J.; that after the search J. left the scene and was soon joined by defendant, who was again seen with J. during the day. The evidence for the defendant was that J. "made him search the parties and do what he did," and that the part he took in the affair was at the command of J. while he had a pistol in his hand, and that he got none of the money taken. Held: There was sufficient evidence from which the jury might have reasonably inferred the defendant's complicity in the robbery committed by J. and there was nothing to authorize the inference that defendant acted under duress of life or great bodily harm, and was, therefore, excusable. (TYSON and SHARPE, JJ., dissenting.) APPEAL from the City Court of Montgomery. Tried before the Hon. WILLIAM H. THOMAS. The appellant in this case, Bill Thomas, was jointly indicted with one Bill Jenkins for robbery, was convicted and sentenced to the penitentiary for ten years. The bill of exceptions contains the following recitals as to the organization of the jury for the trial of the defendant: "When at the commencement of the trial of this case, the sheriff began to draw the names of the jurors out of the hat, twelve of the jurors whose names were in said hat and who were on the special venire of this case, were in the jury room considering their ver dict in another capital case. All the names in the hat |