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-trial the defendant claimed the benefit of the special act in regard to Tuscaloosa county, and objected to be 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 comply with the requirements of section 106 of the Constitution of 1901. The journals show an affidavit that “the above notice was published,’’ etc.; but the notice is not set out in the journal. The appellant contends that such provision is the law of [63]*63that court at any rate, because the act of 1903, Avhich purported to repeal the same section in a former act, is itself void, for failure to comply Avith the same constitutional provision. The various acts in regard to said court are as follows:
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 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 consents thereto in writing.” By the act of February 15, 1899, said section 28 Avas amended so as to read: “That mo defendant shall be put upon trial for any offense which may be punished capitally, Avithin 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 1900-01, p. 711. 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 otlier things proAddes: “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.
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 [64]*64act the name of the court was changed 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 hill to be introduced, that said act is to be amended “by repealing sec-28, as amended by act approved February 15, 1899, so that capital 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 the indictment found, Without his consent.
It is unnecessary to refer to the many deliverances which have been made by this court as to the objects and purposes of this constitutional requirement. No one could have been deceived by this notice, for it states distinctly that said section 28 is to be repealed, and the notice might have stopped there. The mere statement as to what is to be accomplished by this repeal does not affect 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, 148 Ala. 2, 39 South. 362, this court held that the notice was sufficient a,s to one of the other sections of the act, but did not pass upon section 28. We hold now that the notice was sufficient as to section 28, and it now stands repealed.
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 [65]*65same time. This Avas a part of the res gestae, and served to explain the motives of the defendant’s action, and the causes wthich 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 Avitness Mrs. Garrison (widoav of the deceased), on cross-examination, if it Avas not a fact that Mr. Barnett Arery often passed along by her front steps, going to and fro to slop his hogs. The aví tness answered, • “Yes, he Avent there often to slop his hogs; but I never kncAA- him to slop (hem so soon in the morning.” The defendant moved to exclude all that part of the ansAver, “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 Avas not there, at the time of the shooting, but was in Oklahoma. It was entirely irrelevant how long said Crosby had been in Oklahoma, and there was no error in sustaining the objection to that question.
There Avas no error in allowing the .clothes which deceased was wearing Avhen 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 testimony as to the nature of the wounds, blood on the clothing of deceased, and to the finding of a cartridge near the - house of deceased. These AAere all circumstances tending to show Avhat 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.
[66]*66' 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 surrender to the sheriff. The defendant could not make testimony for himself in that waj. — 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 auy 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 ci rcumstances of the shooting, the nature of the wounds inflicted, etc., and the evidence last referred to was not in answer to 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.
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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-trial the defendant claimed the benefit of the special act in regard to Tuscaloosa county, and objected to be 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 comply with the requirements of section 106 of the Constitution of 1901. The journals show an affidavit that “the above notice was published,’’ etc.; but the notice is not set out in the journal. The appellant contends that such provision is the law of [63]*63that court at any rate, because the act of 1903, Avhich purported to repeal the same section in a former act, is itself void, for failure to comply Avith the same constitutional provision. The various acts in regard to said court are as follows:
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 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 consents thereto in writing.” By the act of February 15, 1899, said section 28 Avas amended so as to read: “That mo defendant shall be put upon trial for any offense which may be punished capitally, Avithin 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 1900-01, p. 711. 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 otlier things proAddes: “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.
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 [64]*64act the name of the court was changed 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 hill to be introduced, that said act is to be amended “by repealing sec-28, as amended by act approved February 15, 1899, so that capital 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 the indictment found, Without his consent.
It is unnecessary to refer to the many deliverances which have been made by this court as to the objects and purposes of this constitutional requirement. No one could have been deceived by this notice, for it states distinctly that said section 28 is to be repealed, and the notice might have stopped there. The mere statement as to what is to be accomplished by this repeal does not affect 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, 148 Ala. 2, 39 South. 362, this court held that the notice was sufficient a,s to one of the other sections of the act, but did not pass upon section 28. We hold now that the notice was sufficient as to section 28, and it now stands repealed.
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 [65]*65same time. This Avas a part of the res gestae, and served to explain the motives of the defendant’s action, and the causes wthich 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 Avitness Mrs. Garrison (widoav of the deceased), on cross-examination, if it Avas not a fact that Mr. Barnett Arery often passed along by her front steps, going to and fro to slop his hogs. The aví tness answered, • “Yes, he Avent there often to slop his hogs; but I never kncAA- him to slop (hem so soon in the morning.” The defendant moved to exclude all that part of the ansAver, “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 Avas not there, at the time of the shooting, but was in Oklahoma. It was entirely irrelevant how long said Crosby had been in Oklahoma, and there was no error in sustaining the objection to that question.
There Avas no error in allowing the .clothes which deceased was wearing Avhen 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 testimony as to the nature of the wounds, blood on the clothing of deceased, and to the finding of a cartridge near the - house of deceased. These AAere all circumstances tending to show Avhat 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.
[66]*66' 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 surrender to the sheriff. The defendant could not make testimony for himself in that waj. — 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 auy 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 ci rcumstances of the shooting, the nature of the wounds inflicted, etc., and the evidence last referred to was not in answer to 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^ permissible to show previous difficulties, shedding 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 introduced a witness, who testified that [67]*67he'lmew the general character of the defendant in the community in which he lives, and that it is good; also that lie had never heard anything against him, and that his general character for truth and veracity ivas 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 DOW-DELL, O. 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 botii parties, and the court did not err in regard to the comments 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.
Affirmed.
Anderson, McClellan, Mayfield, and Sayre, JJ., concur. Dowdell, C. J., and Simpson and Denson, JJ., dissent.