DOWDELL, J.
The grand jury that preferred the indictment in this case, and the petit jury that tided the defendant were both regularly organized under the jury law as contained in chapter 166, page 347 of the Criminal Code of 1896.
The question presented is, do the provisions contained' in this chapter apply to the county of Geneva; and' if they do, neither the manner of organizing the grand and petit juries nor the validity of the indictment is questioned. Under the provisions contained in this chapter the drawing of regular juries is made the duty of the county commissioners, and by the commissioners of the County of Geneva the grand jury and the regular petit juries in the case at bar were drawn.
The contention of the appellant is that under the law it’ was the duty of the probate judge, clerk and sheriff to draw the regular jurors. This contention is based upon the following proposition which we quote as stated by appellant’s counsel in their brief: “By an act of the legislature, passed after the adoption of the Code of 1886, but incorporated in that Code in a note, the duty of drawing jurors, both grand and petit, was devolved upon the commissioners’ court. This act changed the entire jury system as found in the Code of 1886, commencing at section 4299, and created an entirely new [34] system of drawing jurors, and expressly repealed sections 4299 et seq. of the Code of 1886. But the provisions of this act did not apply to fourteen counties of the State, and Geneva county among them. In other words, Geneva county was expressly exempted from the operation of that act, and of course was governed in the matter of drawing jurors by the law in the Code. In the Code of 1896 this act is incorporated, as constituting the jury law for the entire State, but the counties named in the original act, as passed, as being exempted from its operation are not mentioned.”
It is argued by counsel that by the passage of the above act of February 28th, 1887, (Acts, 1886-87, p. 151), which was incorporated in the Code of 1886 in a note, that the law contained in the Code, which prior to the passage of said act applied to the entire State, was converted into and ’became a special or local law, or if a public law, not a general and permanent law, and hence was not repealed by the adoption of the Code of 1896. The law contained in the Code of 1886 regulating the drawing of juries was essentially a public law general and permanent in its character, and the effect of the passage of said act of February 28th, 1887, was to withdraw from its operation and influence the counties of the State, other than the fourteen counties excepted in said act, without in any manner affecting the character of the law of the Code as a public law. There was no re-enactment of the law of the Code, and although repealed as to the other counties of the State by the act of February 28th, 1887, it, the old, law, remained unchanged and in full force and vigor in its application to the fourteen counties excepted by the act. The reasoning for the change of the law from a public to a local one rests wholly in implication. The doctrine of the repeal of statutes by implication is not favored by the court, nor any more can the change of a statute from its character as a public and general law to a special or local law by implication be favored. The statutes in question which were codified into the Code 'of 1886 as public laws, general and permanent in their nature, remained in the Code as such as long as there remained a field for their [35] operation, and as such public, general and permanent laws not having been adopted into the Code of 1896, but being omitted from the codification, by the act adopting' the Code of 1896, they were repealed.
The denial of the court of the application for a change of venue though excepted to and assigned as error, although no assignment of error on the record was required under the statute, is not so much as alluded to in the elaborate brief of counsel filed in the case. And after consideration of the application and the affidavits filed in support of it, we conclude ’ that counsel remained silent for the reason that there was no merit in the application. The application does not specifically set forth any sufficient facts or reason why the defendant could not have a fair and impartial trial in said county, and the affidavits in support of it containkmly expressions of opinion and belief.—Crim. Code, 1896, § 5309; Jackson’s Case, 104 Ala. 1; Byers’ Case, 105 Ala. 31; Thompson v. State, 122 Ala. 12; 26 So. Rep. 141.
The 7dea of mis*?''•nun* raised the question as to whether the defendant’s Christian or given name as written in the indictment is Houston or Hwuston, his true name being Houston; the contention by defendant being, that as written in the indictment the second letter in the name is an a and not o, and therefore that he is not indicted by his true name of Houston, but as Hwuston. The original indictment is certified here for our inspection. We find upon an examination of the indictment in looking to other words written therein that the letters a and o in their physical structure are very similar, and we further find upon inspection of the original indictment that the second letter in the given name of the defendant as written is identical in form and appearance with the letter o just before the letter u in the word “aforethought,” which is written in the indictment. In cases where the orthography is doubtful it is the duty of the courts to consult the context, and after consulting the context, if it be found as in this case, that the doubtful letter can as well be taken as an o as an a, the right or proper letter will be accepted. The court and not the jury should decide what are the words of an indict[36] ment or other pleading.— Bishop Crim. Procedure (3d ed.), § 338. In this case by agreement o'f parties the question was submitted both to the court and the jury. The solicitor who drew the indictment testified that the letter'in question ivas an o, and‘that it was the way he made that letter in writing." On this evidence, it being all the testimony offered on this issue., the court at the request of the solicitor in writing gave the general charge for the State. There was no error in the giving of the charge, nor in the other ruling of the court on the plea of misnomer.
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DOWDELL, J.
The grand jury that preferred the indictment in this case, and the petit jury that tided the defendant were both regularly organized under the jury law as contained in chapter 166, page 347 of the Criminal Code of 1896.
The question presented is, do the provisions contained' in this chapter apply to the county of Geneva; and' if they do, neither the manner of organizing the grand and petit juries nor the validity of the indictment is questioned. Under the provisions contained in this chapter the drawing of regular juries is made the duty of the county commissioners, and by the commissioners of the County of Geneva the grand jury and the regular petit juries in the case at bar were drawn.
The contention of the appellant is that under the law it’ was the duty of the probate judge, clerk and sheriff to draw the regular jurors. This contention is based upon the following proposition which we quote as stated by appellant’s counsel in their brief: “By an act of the legislature, passed after the adoption of the Code of 1886, but incorporated in that Code in a note, the duty of drawing jurors, both grand and petit, was devolved upon the commissioners’ court. This act changed the entire jury system as found in the Code of 1886, commencing at section 4299, and created an entirely new [34] system of drawing jurors, and expressly repealed sections 4299 et seq. of the Code of 1886. But the provisions of this act did not apply to fourteen counties of the State, and Geneva county among them. In other words, Geneva county was expressly exempted from the operation of that act, and of course was governed in the matter of drawing jurors by the law in the Code. In the Code of 1896 this act is incorporated, as constituting the jury law for the entire State, but the counties named in the original act, as passed, as being exempted from its operation are not mentioned.”
It is argued by counsel that by the passage of the above act of February 28th, 1887, (Acts, 1886-87, p. 151), which was incorporated in the Code of 1886 in a note, that the law contained in the Code, which prior to the passage of said act applied to the entire State, was converted into and ’became a special or local law, or if a public law, not a general and permanent law, and hence was not repealed by the adoption of the Code of 1896. The law contained in the Code of 1886 regulating the drawing of juries was essentially a public law general and permanent in its character, and the effect of the passage of said act of February 28th, 1887, was to withdraw from its operation and influence the counties of the State, other than the fourteen counties excepted in said act, without in any manner affecting the character of the law of the Code as a public law. There was no re-enactment of the law of the Code, and although repealed as to the other counties of the State by the act of February 28th, 1887, it, the old, law, remained unchanged and in full force and vigor in its application to the fourteen counties excepted by the act. The reasoning for the change of the law from a public to a local one rests wholly in implication. The doctrine of the repeal of statutes by implication is not favored by the court, nor any more can the change of a statute from its character as a public and general law to a special or local law by implication be favored. The statutes in question which were codified into the Code 'of 1886 as public laws, general and permanent in their nature, remained in the Code as such as long as there remained a field for their [35] operation, and as such public, general and permanent laws not having been adopted into the Code of 1896, but being omitted from the codification, by the act adopting' the Code of 1896, they were repealed.
The denial of the court of the application for a change of venue though excepted to and assigned as error, although no assignment of error on the record was required under the statute, is not so much as alluded to in the elaborate brief of counsel filed in the case. And after consideration of the application and the affidavits filed in support of it, we conclude ’ that counsel remained silent for the reason that there was no merit in the application. The application does not specifically set forth any sufficient facts or reason why the defendant could not have a fair and impartial trial in said county, and the affidavits in support of it containkmly expressions of opinion and belief.—Crim. Code, 1896, § 5309; Jackson’s Case, 104 Ala. 1; Byers’ Case, 105 Ala. 31; Thompson v. State, 122 Ala. 12; 26 So. Rep. 141.
The 7dea of mis*?''•nun* raised the question as to whether the defendant’s Christian or given name as written in the indictment is Houston or Hwuston, his true name being Houston; the contention by defendant being, that as written in the indictment the second letter in the name is an a and not o, and therefore that he is not indicted by his true name of Houston, but as Hwuston. The original indictment is certified here for our inspection. We find upon an examination of the indictment in looking to other words written therein that the letters a and o in their physical structure are very similar, and we further find upon inspection of the original indictment that the second letter in the given name of the defendant as written is identical in form and appearance with the letter o just before the letter u in the word “aforethought,” which is written in the indictment. In cases where the orthography is doubtful it is the duty of the courts to consult the context, and after consulting the context, if it be found as in this case, that the doubtful letter can as well be taken as an o as an a, the right or proper letter will be accepted. The court and not the jury should decide what are the words of an indict[36] ment or other pleading.— Bishop Crim. Procedure (3d ed.), § 338. In this case by agreement o'f parties the question was submitted both to the court and the jury. The solicitor who drew the indictment testified that the letter'in question ivas an o, and‘that it was the way he made that letter in writing." On this evidence, it being all the testimony offered on this issue., the court at the request of the solicitor in writing gave the general charge for the State. There was no error in the giving of the charge, nor in the other ruling of the court on the plea of misnomer.
It is here insisted that the statements made by the defendant immediately after the killing, and on the next day, which were in the nature of confessions, were improperly admitted in evidence against the defendant, not haying been first shown to be voluntary. The objection to this evidence when offered was general — that it was incompetent, inadmissible and illegal. It is shown that at the time these statements were made, the defendant was preparing to leave the scene of the killing, bidding good-bye to those present, that he was not under arrest, nor under any physical restraint or duress whatever, nor was there the slightest pretense that the statements were induced by any promises held out or threats made by any one, and that after making the statements or confessions, Avithout hindrance or interference, from any source, he took his leave from the scene of his crime. And on the next day, the statement made by him AAdien passing the home of the Avitness, A\dio testified to the statement, was made with like freedom from duress or restraint, and under circumstances AAdiieh repelled any presumption that it Avas not freely and voluntarily made. That the confessions were voluntarily made is, we think, clearly shown by the attendant facts and circumstances. Such being the case, the rule as to the preliminary ascertainment by the court of the character of the confession, Avhether voluntary or involuntary, is as Avell 'satisfied, as if the witness had stated on voir dire examination that no promises, threats, etc., were made. It was the duty of the court to ascertain that they were freely and voluntarily made, and on ap[37] peal the Supreme Court will presume that the trial court performed its duty unless the record affirmatively show’s that the court committed an error in its action. And it cannot be said that error is affirmatively shown by the record, when the facts and circumstances attending the confession, as shown by the record, rebut any presumption that' the confession was involuntary.—Price v. State, 117 Ala. 114-116; Stone v. State, 105 Ala. 60; Washington v. State, 106 Ala. 58; Love v. State, 124 Ala. 82.
There was evidence that the defendant after shooting the deceased turned and went back into the house, and that in the house he exhibited a long blade barlow knife and said in substance, “this is the knife Thompson had when coming on to me, and I had to shoot him to keep him from killing me.” Other testimony showed that the •knife taken from Thompson’s hand immediately after he was shot, he then being dead, was unopened and was a small black handle knife. This rendered the evidence of the witness Parker to the effect, that he had a short time before the homicide sold to the defendant a barlow knife with blade and handle about the length of the one shown witness, proper and relevant as tending to show the falsity of the defendant’s statement, and that it wras his own knife which he exhibited.
Charge A requested by the defendant is faulty in singling out and giving undue prominence to a particular fact, and it is not relieved of this objection by adding; that it is to be taken in connection with the other evidence in the case. Such charges have been condemned by this court as being argumentative.—=Brantley v. State, 91 Ala. 47; Watkins v. State, 89 Ala. 85; Hussey v. State, 86 Ala. 34.
Charge B if bad for no other reason is faulty., in that it selects and gives undue prominence to certain' parts of the testimony most favorable to the defendant and ignores, in the failure to particularize, other testimony having a contrary tendency.
Charge C is faulty in assuming as a matter of law’ that the facts postulated created imminent peril to life or limb, and in taking from the jury the right and duty [38] of determining whether the facts hypothesized were suffi-o cient to create imminent peril, actual or reasonably apparent.
Charge D is bad in that it does not define the degree of intoxication, and that it was such a degree of drunkenness as would render the defendant incapable of premeditation and deliberation, since a man may be intoxicated and yet not be so drunk as to render him incapable of deliberation and premeditation.—=Morrison v. State, 84 Ala. 405. Moreover, the whole testimony in this case shows that the defendant was not so intoxicated as to be incapable of deliberation and premeditation.
Charge E, besides being bad in that it pretermits the doctrine of retreat, is bad in other respects. It is a mistake to postulate a charge on the theory that the deceased provoked the difficulty, or on a reasonable doubt as to defendant’s having provoked the difficulty, or as to which, of the two provoked or brought on the difficulty, as these are not equivalent to that freedom from all fault on the part of the defendant which the law enjoins, either in bringing on, provoking or encouraging the difficulty, or the freedom from willingness of the defendant to enter into the difficulty and slay the deceased; for although the deceased may have provoked or brought on the difficulty, yet if the defendant willingly enters into the difficulty— is willing to engage in the deadly combat and manifests such willingness by word or deed — and in such mutual combat slays the deceased, he is not free from fault and is not' guiltless.—Bouldin v. State, 102 Ala. 83; Baker v. State, 81 Ala. 38; Kirby v. State, 89 Ala. 63; Gibson v. State, 91 Ala. 64.
Charge F is misleading in limiting the jury to the one issue as to who provoked the difficulty. The jury might believe that the deceased first provoked the difficulty, yet the defendant would not be wholly free from fault, if he encouraged or willingly entered into the difficulty. The issue is not solely who first provoked the difficulty, but it is the total freedom from fault on the part of the defendant. There might be no reasonable doubt that the deceased provoked the difficulty,- and yet the State would fully discharge the burden of proof on it by show[39] ing that the defendant encouraged by word or deed the difficulty or willingly entered into mutual combat.—Hussey v. State, 86 Ala. 634; Brantley v. State, 91 Ala. 47; Watkins v. State, 89 Ala. 85.
Charge G- is subject to the same criticism as charge E, besides being faulty in that it ignores the doctrine of retreat.—Brown v. State, 83 Ala. 35.
Charge H was properly refused. To render the defendant guilty of murder in the second degree it is not necessary that he had determined to take the life of the deceased both “maliciously and with premeditation.”
Charge I urns properly refused. Premeditation and a previously formed design may be excluded by a sudden transport of passion on adequate provocation, and yet malice may remain. Such sudden passion is not inconsistent with malice:—Martin v. State, 119 Ala. 1.
Charge J is manifestly erroneous. Premeditation is not an essential element of murder in the second degree. Moreover, this charge asserts that, although the jury may believe that the homicide was unjustifiable, yet if it was done Avith malice and premeditation the defendant cannot be convicted of murder. This is palpably erroneous.
It is unnecessary to pursue the course of separately criticising the remaining charges designated as K, L, M, N, O, P, Q and R, which were refused to the defendant. It is sufficient to say of these charges that each and every one of them are characterized by some one of the infirmities pointed out in the other charges, which Ave have discussed. They are either misleading or some one of the essential elements of self-defense is pretermitted, or the law incorrectly stated as to the doctrine of retreat or imminency of peril. The last charge, R, was condemned by this court in the case of Miller v. State, 107 Ala. 40. It is bad in that it omits to set out the constituent elements of self-defense. We have carefully considered each and every one of the charges refused to the defendant, and we are of the opinion that they were properly refused.
We find no error in the record, and the judgment of the circuit court must be affirmed.