DENSON, J.
The defendant was tried on an indictment which charges murder in the first degree, a capital offense. § 5004 of the code of 1806 provides that: “When any capital case or cases stand for trial, the court shall at least one day before .the same is set for trial, cause the box containing the names of jurors to be brought into the courtroom, and after having the same well shaken, the presiding judge shall then and there publicly draw therefrom not less than twenty-five nor more than fifty of such names for each capital case.” It has been uniformly held by this court that this section of the code is mandatory and the record must affirmatively show a compliance with its terms. — Scott’s Case, (Ala.) 37 South. 366; Bankhead’s Case, 124 Ala. 14, 26 South. 979; Watkin’s Case, 89 Ala. 82, 8 South. 134; Washington’s Case, 81 Ala. 35, 1 South. 18; Jordan’s Case, 81 Ala. 20, 1 South. 577. Neither the original record nor the one sent up in response to the certiorari shows the number of jurors that were drawn by the presiding judge. [87] The record contain these recitals on the subject: “And this being a capital case, on motion of the solicitor it is ordered by the court that Monday, October 9, 1905, he set for the trial of this case, and that 50 special jurors be drawn and ordered summoned for the trial of this case. Thereupon the court caused the box containing the names of the jurors for Limestone county to be brought into court, and after having the same Avell shaken, the defendant being present in open court, the presiding judge then and there publicly drew the following names from the jury box, to-wit.” The names are not set out and tli(«re is nothing in the record to show just how many names were drawn. The fact that 50 were ordered does not show that 50 were in fact drawn from the box. The judge may have drarvn a number less than 50 and the box may have been exhausted. While we can in many instances presume that a court, or a judge has complied with the law, this is not one of the instances, as the facts must affirmatively appear of record. Authorities supra. If for no other reason, this case will have to be reversed on account of this defect in the record. We do not mean to decide that it is essential to a compliance with § 5004 of the code of 1896 that the names of the jures should be set out, but that the order should affirmatively show that the number ordered to be drawn Avere draAvn.
The evidence adduced on the trial, as appears from the bill of exceptions, shoAved: That the homicide occurred on the 25th day of June, 1904, in Limestone county, at Bakers Mill, Avliere there was a large gathering of people; the occasion being a neighborhood barbecue or picnic. That among those present Avere the defendant, hi* three sons, John Morris, Jr., Walter Morris, and Eddie Morris; also the Avifo of John Morris, Jr. and three small children of Walter Morris. It is not contended that the defendant killed deceased or that he did him any injuiy Ardiatever Avitlr his own hand. But he Avas tried and convicted on the theory that he avos either a conspirator Avith his son, John Morris, Jr., who did the killing, or that he aided and abetted his son, or was pres[88] ent to aid and abet him. “The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in the cases of felony, is abolished by statute; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must be indicted, tried, and punished as principals.’’ — Code 1896 §4308; Jolly’s Case, 94 Ala. 19, 10 South. 606; Tanner’s Case, 92 Ala. 1, 9 South. 613; Tally’s Case, 102 Ala. 25, 15 South. 722.
When by prearrangement, or on the spur of the moment, “two' or more persons' enter upon a common enterprise or adventure, and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist, the active perpetrator in the commission of the offense, is a guilty participant, and, in the eve of the law, is equally guilty with the one avIiq does the act. ' Such community of purpose, or conspiracy, need not be proved by positive testimony. It rarely is so proved. The jury are to deterqnine. whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case.” —Tanner’s Case, 92 Ala. 1, 9 South. 613; William’s Case, 81 Ala. 4, 1 South. 179, 60 Am. Rep. 133; Martin’s Case, 89 Ala. 115, 8 South. 23, 18 Am. St. Rep. 91; Gibson’s Case, 89 Ala. 121, 8 South. 98, 18 Am. Rep. 96; Elmore’s Case, 110 Ala. 63, 20 South. 323; Evans’ Case, 109 Ala. 13, 19 South. 535; Raiford’s Case, 59 Ala. 106.
With respect to the question of conspiracy or common purpose to kill the deceased, Doc Grisham, it has been strenuously argued in the brief of appellant’s counsel that, before declarations of the defendant tending to show such conspiracy are admissible as evidence, it must appear by evidence aliunde that a conspiracy existed; in other words, that in this respect the conspiracy and not the homicide constitutes the corpus delicti, and not[89] withstanding the proof clearly, and without dispute stowed that the homicide was committed, the declarations (if the defendant himself tending to show the conspiracy to kill deceased are not admissible, in the absence of other pioof preceding the proof of the declarations, which tended to show the conspiracy. We fully recognize the well-established rule of evidence that, before declarations of a co-conspirator are admissible against another, a foundation must be laid by proof sufficient, in the opinion of the judge presiding, to establish prima facie the existence of such conspiracy. — Martin and Flinn’s Case, 28 Ala. 71; Johnson’s Case, 29 Ala. 62, 65 Am. Dec. 383; McAnally’s Case, 74 Ala. 9; Hunter’s Case, 112 Ala. 77, 21 South. 65; Johnson’s Case, 87 Ala. 39, 6 South. 400; Thomas’ Case, 133 Ala. 139, 32 South. 250. But it must be borne in mind that the deftndant is not indicted for a conspiracy to commit murder, but for the murder itself; further, that it is not the declarations cf a co-conspirator, but of the defendant, that are the subject of this discussion. Hence the insistences of the defendant in this respect are inapt, as is also the distinction with respect to accessories before and after the fact, drawn and argued by counsel and bottomed on the Tally Case, 102 Ala. 25, 15 South. 722.
Upon these considei ations we think the court did not err in allowing Mrs. M. A. Price to testify that a few minutes after the difficulty she heard the defendant say, “We have come here to Id 11 Doc Grisham and we are going to do it.” Its tendency was to show a common purpose between him and his son to kill Grisham, or at least it was competent to go to the jury, arid it was for that tribunal to determine its weight, in connection with all the other .evidence, including the denial of the defendant that he gave utterance to the declaration. For the same reason the evidence of Mus. A. J. Grisham that, “shortly after the shooting of B. F. Grisham (Doc) by John Morris, Jr., she heard Mrs. Ida Grisham screaming, ‘They have killed Doc Grisham,’ ” and at this time she saw the defendant and heard him say, “I hope we’ve [90] done him up, and if we haven’t I will go back and finish him.” Tt may be that the statement of Mrs. Ida Grisham, apart from the reply of the defendant, wav subject to the objection made to it; but the statement of the defendant at the time was evidently in response to Mrs. Grisham’s statement, at least it was for the jury to determine whether it was or not, and, if it was. then it was explanatory of the defendant’s declaration, which tended to show bad feeling on the part of the defendant, and also tended to inculpate the defendant. — Morris’ Case, 39 South. 608; Jones’ Case, 96 Ala. 102, 11 South. 399.
The evidence of witness Malone and Mrs. M. A. Price that about ten minutes after the shooting they heard defendant say he would kill every damned Grisham by the name was properly admitted. The tendency of the declaration was to show malice on the part of the defendant. Its Aveight Avas a question to be determined by the jury. — McManus’ Case, 36 Ala. 285; Plant’s Case, 140 Ala. 52, 37 South. 159; Kerr on Homicide, p. 475, § 430. Nor did the fact that the declaration did not particularize the deceased by his given name render it inadmissible. It Avas for the jury to determine Avhether the deceased Avas referred to. — Harrisons’ Case, 79 Ala. 29; Anderson’s Case, 79 Ala. 8. The facts and attendant circumstances under Avhich the several declarations were made affirmatively show that the declarations Avere made voluntarily, and there could be no valid objection that a proper predicate Avas not laid for the admission of them. — Bush’s Case, 136 Ala. 85, 33 South. 878; Stone’s Case, 105 Ala. 60, 17 South. 144; Prieto’s Case, 117 Ala. 114, 23 South. 691.
W. H. McClellan, the first Avitness examined by the state, testified that the first thing that attracted his attention Avas that lie heard some one remark, “There is going to be a fight.” At the last term, on an appeal by John Morris, Jr., from a judgment of conviction for the killing of the deceased, Doc Grisham, we said of this declaration: “That the undisputed evidence shoAved that [91] the difficulty or ‘fuss’ almost immediately ensued between Morris and the deceased, and, if it should be conceded that the court erred in admitting the declaration, we are. satisfied that no injury resulted therefrom to the defendant” — citing code 1896, § 4333. Morris’ Case, 39 South. 608. The facts in the case at bar differentiate it from that case, in that here we have evidence- tending to show a conspiracy, and one theory of the prosecution was that the killing was the result of a conspiracy. From the remaik objected to the jury might have been left to infer a conspiracy, without proof that one of the alleged conspirators made if. We think in this case the evidence was inadmissible, and the court erred in not sustaining the objection to it.
Witness Tucker ivas permitted to testify that shortly before the killing he was standing in a crowd near the dance ring and the defendant was dancing, that he heard the defendant say while dancing: “Where is Doc Gris-ham? Oh, Doc! Doc!! come and dance some while you are mad.” It was a disputed fact on the trial as to who provoked the difficulty in which Grisham was killed, the defendant or the deceased, and any evidence that would cast light on the status of defendant’s mind with respect to Grisham was competent, and we think this evidence was competent for that purpose. Its weight may be slight, but with that we are not dealing. That is a jury question. Tlum the- admissibility of this evidence is strengthened by the declaration made by defendant after the. difficulty, as testified to by Mrs. Price: “We’ve come here, to kill Doc Ga-isham and we are going to do it.” — Morris' Case, (Ala.) 39 South. 609; Armor’s Case, 63 Ala. 173.
All that was said or done by defendant in reference to Doc Grisham on the day of the difficulty and leading-up to the difficulty was competent. Upon this consideration the testimony of Mrs. B. F. Grisham, widow of the deceased, “that about a half hour before the difficulty she heard the defendant at the dinner table curse and call Doc Grisham’s name, but did not understand [92] what he said,” was competent. Especially so when taken in connection with the proof of defendant’s declaration, made after the difficulty, “We’ve come -here to kill Doc Grisham and we are going to do it.” — Armor’s Case, 63 Ala. 173.
Witness Colbert was permitted to testify, among other things, as follows: “I heard the defendant at the dinner table say, ‘Eat, drink, and be merry, and we will shell these damned woods down directly?” In connection with the other evidence in the case, we think there was no error in admitting this evidence.
The proof we think sufficiently showed that John Robinson’s permanent residence was in the state of Tennessee. He had not been subpoenaed, and his evidence given on the preliminary trial of this defendant, with others, was properly admitted. — Lett’s Case, 124 Ala. 64, 27 South. 256. and authorities there cited; Wilson’s Case, 140 Ala. 43, 37 South. 93; Jacobi’s Case, 133 Ala. 1, 32 South. 158.
The motion made by’ the defendant to exclude the state’s evidence as to the shooting of B. P. Grisham (deceased) on the grounds named is without merit. The evidence cannot be said to be free from inference that the defendant conspired to kill Grisham, or that be aided or abetted his son, who killed him. To shown conspiracy to do an unlawful act it is not indispensable that the evidence should show the existence of the conspiracy any definite time prior to the doing of the act. It may have arisen on the spur of the moment. Nor is. it necessary that the conspiracy or common purpose should be shown by positive evidence, but its existence may be inferred from all the attendant circumstances accompanying the doing of the act, and from conduct of the defendant subsequent to the criminal act. — Tanner’s Case, 92 Ala. 1, 9 South. 613; Williams’ Case, 81 Ala. 4, 1 South. 179, 60 Am. Rep. 133; Martin’s Case, 89 Ala. 115, 8 South. 23, 18 Am. St. Rep. 91; Gibson's Case, 89 Ala. 121, 8 South. 98, 18 Am. Rep. 96; Elmore’s Case, 110 Ala. 63, 20 South. 323; Evans’ Case, 109 Ala. 13, 19 South. 535; [93] Johnson’s Case, 29 Ala. 62, 65 Am. Dec. 383; Scott’s Case, 30 Ala. 503; Buford’s Case, 132 Ala. 6, 31 South. 714.
It has been (Suggested and seriously argued by counsel for appellant that the evidence for the state should have been excluded upon the ground stated in the motion, “that no conspiracy is shown.” We have adverted to the tendencies of the evidence in this respect, and are satisfied that this was a jury question. But the defendant’s counsel urged that, when this case ivas before this court on appeal by the state from an order granting defendant bail on an application for habeas corpus, this court must of necessity have held that the evidence before it would not authorize or sustain a conviction for a capital offense, and that therefore there was no evidence of a conspiracy. It may be true that the evidence contained in the record in that case did not warrant a conviction for the capital offense, but it does not follow that, because the court affirmed the order of the judge allowing bail, the state was thereby precluded from prosecuting the defendant for murder in the first degree and from introducing other evidence. Nor does it follow that- the evidence contained in the record now before us is the same as was the evidence in the record on the appeal referred to-. Counsel in their brief expressly disclaim any contention that the guilt or innocence of the defendant became res adjudicata by the decision made in the habeas corpus case by this court. But; they contend that in ¡hat case the court having determined that there was no evidence upon which a trial court could permit a- conviction for murder in the first degree to stand, therefore there was no authority for the jury to find for a lesser offense than murder in the first degree, and the court should have excluded the evidence. It seems to us that this argument, logically followed, would lead to the position that the ruling of the court-on the application for bail became res adjudícala. The position, however, of the defendant seems to be that, if two or more conspire to commit a murder, there can be [94] no conviction for a. less offense than murder; in other words, that there cannot be aiders and abettors in manslaughter. It is sufficient to reply to this position or contention that this court has expressly held to the contrary, and we see no reason for departing from the holding. — Coleman’s Case, 5 Port. 32; Martin’s Case, 89 Ala. 115, 8 South. 23, 18 Am. St. Rep. 91; Code 1896, § 5306.
What occurred from the time that Grisham and the defendant walked to the place at which the difficulty occurred to the conclusion of the' affray was a continuous transaction, and all that was said and dene by the parties to it while the affray was in progress was of the res gesta;. — Wood’s Case, 128 Ala. 27, 29 South. 557, 86 Am. St. Rep. 71; Dixon’s Case, 128 Ala. 54, 29 South. 623; Armor’s Case, 63 Ala. 173; Stitt’s Case, 91 Ala. 10, 8 South. 669, 24 Am. St. Rep. 853; Smith’s Case, 88 Ala. 73, 7 South. 52; Seam’s Case, 84 Ala. 411, 4 South. 521; Amos’ Case, 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 682; Plant’s Case, 140 Ala. 52, 37 South. 159. In this view, the shooting of McClellan by defendant, the drawing of a second pistol by John, Jr., and, to repeat, everything done and said by the parties while engaged in the difficulty was competent to be shown in evidence.
The evidence elicited by questions propounded by the solicitor to the witness. John Morris, Jr., with respect to a conversation lie had with Torn McLemore in November, 1903, was not competent, as substantive evidence against the. defendant, and we do not apprehend that it was introduced in that light, but only to show the animus of the witness towards the deceased, and thus to affect the credibility of the witness’ evidence. It went to witness’ credibility. We think the evidence was competent for this purpose, and was properly admitted against the specific'objections made by the defendant. That the court did not limit it to this is not a matter of which the defendant can complain, in the absence of a motion on his part to the court to so limit it. Tt may be that the state should have been confined to the proof of the simple fact that there wais a threat made by the wit[95] ness against deceased, or previous ill will. If an objection had been made to giving the details of the occurrence referred to, it should have been sustained. — Jordan’s Case, 79 Ala. 9. The witness having denied making the statement, it was competent to offer evidence that hr did make it.
On cross examination of the defendant as a witness, the state was permitted to ask him if he did not; “that day after the difficulty, in response to a question asked him by Earl MeGlooklin, while he was still on the barbecue grounds, as to whether or not witness was hurt much, he replied, Not a damned bit; but, by G — d, I am going to hurt somebody before I leave.”’ The witness had t; stified that, when the deceased knocked him down, he jumped on him, caught him in the throat with his left hand, and began to beat him in the face with his right hand. Whether or not the defendant was hurt and the extent of his injuries ivas a material question in the. case. The contention of the state was that deceased struck him only one blow, while the defense contended that he ivas struck several times by the deceased and badly hurt. If defendant said that he Avas not hurt, then it was proper to go to the jury as contradictory of his evidence that deceased knocked him doAvn, caught him in the throat, and struck him several blows. If the question coupled matter that was illegal Avith that Avhich Avas legal, the objection made did net properly raise the question.
This brings us to the exceptions reserved by the defendant to parts of the oral charge of the court and to charges refused to the defendant. The court in its oral charge instructed the jury, among other things, as follows : “I charge you, gentlemen of the jury, that the doctrine of the laAv of self-defense has no field of operation in this case. There is no room for a plea of self-defense in this cause. There is no field of operation for such defense.” This was a. charge on the effect of the evidence, and the court erred in giving it. In his own evidence and that of his son. John Morris, Jr., wo think mav he [96] found sufficient tendencies to require a submission of the question of seif-defense to the jury under proper instructions by tbe court. We will not speak of the tendencies in detail, lest we might unduly magnify or minimize some of them. Then it must be remembered, that there was evidence rebutting the theory of a conspiracy. In the report of the case of Morris v. State, (Ala.) 39 South., on page 610, the authorities applicable to the case with respect of the doctrine of self-defense are collated. The court is not clothed with authority to take any material question of fact from the jury, when there is any tendency in the evidence to support it.
Quite a number of written charges were given at the request of the defendant, and quite a number were refused to him. Charges similar to refused charge 7 have been so often condemned by this court that it is hardly necessarv to do- more than cite an authority.- — Mann’s Case, 134 Ala. 1, 32 South. 704.
.Charge 12. refused to defendant, is in this language: “I charge you, gentlemen of the jury, that you cannot find this defendant guilty as an aider or abettor of the killing of B. F. Grisham, if he gave, no assistance or uttered no word to the person doing the killing, if the defendant was not present by preconcert, special or general, nor present with the knowledge of the person doing the killing with intent to aid him, unless he actually took part in the killing himself.” In the case of Raiford v. State, 59 Ala. 106, this court defining the words “aid and abet,” said: “The Avoids ‘aid and abet/ in legal phrase, are pretty much the synonyms of each other. They comprehend all assistance rendered by acts or words or encouragement or support or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury a’-e convinced beyond a reasonable doubt.-that the defendant AA-as present with a vípav to render aid, should it become necessary, then that ingredient of the offense is made out.” In the- case of State [97] ex rel. Attorney General v. Tally, 102 Ala., on page 66, 15 South. 722, there the responsibility of Tally for a homicide committed by another, upon the theory that Tally was a principal in the second degree at common law, was considered. The homicide was committed at Stevenson by Skelton, while Tally was at Scottsboro, several miles away; but it was held that the evidence, shewed Tally was constructively present, and the question under discussion was whether or not the evidence showed that Tally aided and abetted Skelton in the commission of the homicide. The court there reviewed the definition of the words “aid and abet,” as given in the Baiford case, and said: “The definition was sufficient for the case then in hand, and it is in the form not infrequently found in the books. But it is incomplete. Mere presence for the purpose of rendering aid obviously is not aid in the substantive sense of assistance by an act supplementary to the act of the principal. Nor is it aid in .the original sense of abetting, nor abetting in any sense, unless presence with the purpose of giving aid, if necessary, was preconcerted or in accordance with the general plan conceived by the principal and the person charged as an aider or abettor, or, at the very least, unless the principal knew of the presence, with intent to aid, of such person. * * * And in the nature of things the fact of presence and purpose to aid could not incite or encourage or embolden the principal unless he knew of the existence of that fact. * * * The definition we have quoted is, as an abstract proposition, clearly at fault. As applied in the concrete to cases of confederacy as it is, we undertake to say, whenever it is stated in this form, it is free from objection. But in the absence of confederacy, or at least of knowledge on the part, of the actual perpetrator of a crime, one cannot be a principal in the second degree who is present intending to aid and does not aid by word or deed. The definition must go- further. It should appear by it that, to be an aider or abettor taken no assistance is given or word uttered, the person so charged must 'have been present by preconcert, special or general, or at least to the knowledge of the prin[98] cipal, with the intent to aid Mm.” So it appears that the charge now under discussion is based upon that portion of the opinion of the court as italicized above. “Whenever a father engages in a fight, the tendency of that act is to incite a son, who may be standing by, to acts of violence towards the. antagonist of the father. This tendency may be affirmed in respect to many other ties of kindred, or in many instances of merely close companionship. What rash or violent act the bystanding son, kinsman or comrade may be moved to do depends in a great measure upon the qualitj" of his tempter, the strength of his affection, and the notion, often mistaken, that he may hastily gather under the excitement of the moment, as to who is at fault, and to be held responsible for bringing on the conflict. And if the bystanding son, other kinsman, or comrade should of his own volition, by an independent act of violence, slay the antagonist, the party engaged in the fight should not be charged with this act merely because lie was engaged in a. conflict with the deceased, and in that way, but in that way only, incited the fatal act. This is not enough' to show a criminal intention. Something more must appear. He must have purposely incited or encouraged the party in that course of violence that led to the homicide, or done some overt act himself, with a view to that result, and that in some degree contributed thereto.” — Woolweaver v. State, (Ohio) 84 N. E. 352, 40 Am. St. Rep. 667; Goins v. State, 46 Ohio St. 457, 21 N. E. 476; Tanner’s Case, 92 Ala. 1, 9 South. 613; Jordan’s Case, 79 Ala. 9. It is well settled that a party may aid or abet another by menace, gesture, or act. This is clearly recognized by all the authorities. We think on the facts in the Tally Case the law is correctly enunciated there. The defendant’s counsel framing charge 12, attempted to follow the Tally Case; but as the charge is framed it is misleading, if not inherently bad, and in that it uses the word “or” where “and” should have been used between the words “assisted” and “uttered.” Furthermore, there is evidence tending to show that defendant, at the time John Morris, Jr., killed deceased, was standing in front of [99] deceased with his hand near his pocket as if attempting to draw a weapon. If this evidence wag believed, its tendency was to show a demonstration by defendant, a menace, which the jury had a right to consider in reference to the question of aiding and abetting. The charge does not hypothesize aiding and abetting by conduct, demonstration, or menaces, and for this reason was well refused.
The Tally Case recognizes the principle that, if the killing was done in pursuance of a common purpose to do the act, that would be sufficient. And the definition given in the Raiford Case of the terms “aid” and “abet” would be free from objection in a case where the tendency of tiie evidence is to show a conspiracy. The charge under consideration seems to negative the presence of the defendant as a conspirator. But charge 18, refused to the defendant, entirely ignores the theory of a conspiracy, and for this reason, if for no other, must be held bad. Whether or not defendant conspired to kill deceased was a question for the jury. Where there is any evidence, however slight, tending to support a given contention, it cannot be ignored; the contention being a material one. Besides, it would seem that in giving charge 35 the defendant had full benefit of all that is contained in charge 18 — Frank’s Case, 27 Ala. 37; Elmore’s Case, 110 Ala. 63, 20 South. 323; Alston’s Case, 109 Ala. 51, 20 South. 81; McLeroy’s Case, 120 Ala. 274; Amos’ Case, 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 682; Pierson’s Case, 99 Ala. 148, 13 South. 550.
Charge 20 assumed that all the evidence of conspiracy was circumstantial evidence. The declaration, if made by the defendant, “We’ve come here to kill Doc Gris-ham,” is a confession, or in the nature of a confession, and therefore not circumstantial evidence. Furthermore, it is not indispensible that the state should prove a motive for the commission of the crime, and the charge was argumentative. — Jackson’s Case, 136 Ala 23, 34 South. 188; Hornsby’s Case, 94 Ala. 55, 10 South. 522.
Charge 21 is an invasion of the province of the jury. Besides, it does not' contain a true statement in point of fact.
[100] Charge 26 seems to state a correct proposition, hut it was practically covered by given charges 24, 89, 45, and 47, and its refusal was, therefore, not error.
Charge 29 is practically covered by given charges 32, 33, and 24.
Charge 31 ignores tlie evidence of conspiracy. Besides it seems to be covered by given charges 47 and 00.
Charge 41 may be condemned on two or more grounds. In the first place it assumes that malice on the part of John Morris, Jr., was not indulged in by the defendant. It is misleading, as the defendant may have been convicted of manslaughter (and he was), an offense not involving malice. — Littleton’s Case, 128 Ala. 31, 29 South. 390; Thompson’s Case, 131 Ala. 18, 31 South. 725; Jarvis’ Case, 138 Ala. 17, 34 South. 1025.
Charge 42 is subject to the criticism made with respect of charge 41, that it is misleading. But the theory of the defendant, as shown by refused charge MM is, that there cannot be aiders and abettors in manslaughter. This theory is contrary to the decisions of this court as before noted. — Coleman’s Case, 5 Port. on page 41; Martin’s Case, 89 Ala. on page 119, 8 South. 23, 18 Am. St. Rep. 91; Ferguson’s Case, 141 Ala. 20, 37 South. 448; Code 1896, § 5306. The charge was properly refused, as also were charges MM and ZZ.
Charge 46 invades the province of the jury.
Charge 50. Malice is not an ingredient of manslaughter, and, if charge 50 is a good charge, the refusal of it was rendered innocuous by the verdict finding the defendant guilty of manslaughter. Besides it may be said of the charge that it is misleading.
Charge 53 is a copy of charge 6, which was held to be a good charge in Whitaker’s Case, 106 Ala. 30, 17 South. 456. The charge should have been given.
In given charges 25, 28, 35, 38, and J, it seems that the defendant had the benefit of tire propositions contained in refused charge 2A, and some, of the charges were even more favorable to the defendant than charge 2A, and by giving charge 36 the court rested the conviction alone upon the hypothesis that the jury should find beyond a [101] reasonable doubt that a conspiracy actually existed between the defendant and John Morris. So the court was under no duty to give charge 2A.
Charge AA was properly refused. It relates to self-defense, and does not set forth or define the constituent .elements of self-defense. The same criticism is applicable to charge 1B. — Mann’s Case, 134 Ala. 1, 32 South. 704.
Charge 3B is a mere argument and was properly refused.
Charges CC, DD, and E need not be considered, as the verdict was for no higher offense than manslaughter.— Jarvis’ Case, 138 Ala. 17, 34 South. 1025.
Charge EE is incomplete, in that it ignores the tendency in the evidence that the father (defendant) entered willingly into the difficulty or that he encouraged it. Such charges should negative willingness in entering into the diffteultv. — Gilmore’s Case, 126 Ala. 21, 22 South. 595; Mitchell’s Case, 129 Ala. 23, 30 South. 348; Wilson’s Case, 128 Ala. 17, 29 South. 569; Wood’s Case, 128 Ala. 27, 29 South. 557, 86 Am. Sta. Rep. 71; Sherill’s Case, 138 Ala. 3.
Charge G was properly refused. The postulate that the burden of proof was on the. state to prove that defendant was not free from fault in bringing on the difficulty, without more, was calculated to mislead the jury to believe that retreat and imminent peril were not important factors in the case.
Charge K is argumentative and misleading.
Charges KK and NN are patently bad for reasons given in a former part of this opinion pertaining to the motion to exclude evidence offered by the state.
Refused charge 00 ignores the evidence tending to show a conspiracy. Moreover, John Morris, Jr.’s, right of self-defense depended somewhat upon the status that the defendant occupied with reference to- the difficulty and this the charge entirely ignores-.- — Wood’s Case, 128 Ala. 27, 29 South. 557, 86 Am. St. Rep. 71; Morris’ Case, (Ala.) 39 South. 608.
Charge X, refused to the defendant, invades the province of the jury.
[102] Charge Y pretermits the theory of a conspiracy formed to kill the deceased, and deals alone with the doctrine of aiding and abetting. We think the charge properly hypothesizes that John Morris, Jr., must, have had knowledge of the acts or words; but we think that the charge goes too far in hypothesizing that he must have had knowledge that the acts or words were done or said for the purpose of aiding or encouraging. If under the attendant circumstances he was led to believe that the acts or words were done or said to encourage, him, then that would be sufficient. Having reason to believe that a purpose exists is not the same thing as knowing that it does exist. The. charge was properly refused.
The charge designated XYZ, refused to. the defendant, was properly refused on the authority of Sullivan’s Case, 102 Ala. 135, 15 South. 264, 48 Am. St. Rep. 22. In addition to the. reasons assigned for holding the charge bad, we think the charge should have negatived willingness on the part of the defendant in entering into the difficulty and encouragement of it. — Gilmore’s Case, 126 Ala. 20, 28 South. 595.
We think that it was not in the province of the court to instruct the jury that there was no evidence in the case that defendant aided or abutted John Morris, Jr., in killing Grisham. Having so instructed the jury, it was the duty of the court to recall the jury and in proper manner correct the error. Of course this could only be properly done in the presence of the defendant and his counsel. The presiding judge should sedulously avoid any communication with the jury with reference to the case in the absence of the defendant and his counsel. As the cause must be reversed on other points, and the matter complained of will not probably occur again, we deem it unnecessary to say more with respect to this matter.
For the errors pointed out the judgment of conviction must be reversed, and the cause remanded.
Reversed and remanded.
Haralson, Dowdell, and Anderson, JJ., concur.