ject. Fountain v. State, 98 Ala. 40, 13 South. |ity. 492. [4] Charge 2 requested by the defendant was properly refused because of its failure to hypothesize the defendant's freedom from fault in bringing on the difficulty. Kirby v. State, 151 Ala. 66, 44 South. 38; Smith v. State, 142 Ala. 14, 39 South. 329; Harrison v. State, 144 Ala. 20, 40 South. 568; Gilmore v. State, 126 Ala. 20, 28 South, 595. The giving of that charge would have made it the duty of the jury to acquit the defendant though they found from the evidence that he was at fault in provoking the deceased to become the aggressor. Charge 4 requested by the defendant was properly refused. It is a literal copy of an instruction which several times has been condemned as unsound. Brown v. State, 150 Ala. 25, 43 South. 194; Pitts v. State, 140 Ala. 70, 37 South. 101. [5] Charge 5 requested by the defendant involves the assumption as a fact that the act of the deceased in merely commencing to draw a deadly weapon before the defendant fired constituted a real or reasonably apparent peril to the defendant of death or grievous bodily harm, entitling him to shoot in self-defense. Under that charge the defendant would have been entitled to an acquittal, though the jury found from the evidence that he shot when there was no real or apparent necessity of his so doing in selfdefense. Patterson v. State, 146 Ala. 39, 41 South. 157. It is not necessary to determine whether the charge was otherwise faulty. The court did not err in refusing to give it. Cribbs v. State, 86 Ala. 613, 6 South. 109; Patterson v. State, 146 Ala. 39, 41 South. 157. The mode in which the court used the quoted language to which an exception was reserved was not calculated to convey the impression that it was adopted by the court as a part of the definition requested. It is not necessary to determine whether or not the court would have been in error if it had adopted the quotation objected to as a part of its definition of malice. See Patterson v. State, supra. It suffices to say that the record does not show that it did so. There was no merit in the exception under consideration. The record presents no other question for review. Affirmed. (1 Ala. App. 633) ROWE v. ARRINGTON. A justice's judgment is rendered when he ment is entered; and hence a request by a announces his decision, and not when the judggranishee to amend his answer to show that a fourth person claimed the garnished fund came too late, where, when it was received, the justice had announced a decision against the garnishee, which was being entered. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 295-305; Dec. Dig. §§ 119, 87.*] Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge. Action by S. N. Rowe against R. H. Arrington. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Claud Riley, J. A. Carnley, and John H. Wilkerson, for appellant. J. F. Sanders and R. H. Arrington, for appellee. DE GRAFFENRIED, J. The appellee, plaintiff in the court below, brought this suit against the appellant to recover the sum of $58.50, which plaintiff alleges in his complaint was received by the defendant on the 18th day of February, 1907, for the use of the plaintiff. There was an agreed statement of the facts and a verdict in favor of the plaintiff. [6] It is shown by the bill of exceptions that after the submission of the case to the jury they returned and asked the court to define malice. The bill of exceptions then states: "The court then read to the jury the following paragraphs from Mayfield's Digest, vol. 1, 602: (4) Malice in law is not necessarily hatred or ill will, but is an intentional doing of an unlawful act. (5) Malice as an ingredient of murder is in law the killing of a human being without legal justification, excuse, or extenuation.' The court then stated to the jury that malice, as an ingredient of murder, does not necessarily mean hatred or ill will, but it is the unlawful and willful killing of a human being without any legal excuse or extenuation." It does not appear from the charge, read as a whole, that the court instructed the jury that the language last quoted by it constituted, in whole or in part, its definition of malice. On the contrary, it plainly appears that the court read in the hearing of the jury the two definitions of malice found in the book mentioned, and then stated to the jury what it deemed the proper definition of the term, to be taken by the jury as the court's answer to the request for a definition. The definition adopt- The only question in the case was whether ed by the court is well sustained by author-one T. J. Carlisle, a justice of the peace, re There were several pleas in the case, among them plea No. 2, and upon this plea, along with the other pleas in the case, issue was joined and the case was tried. The case was submitted to the jury on an agreed statement of facts, and the facts, as agreed upon, sustained in all things the averments of plea No. 2, and for that reason the court erred in giving the general charge for the plaintiff and should have given the general charge requested in writing by the defendant. ceived a telegram prior to the rendition by | ture of things, a judgment must be rendered him of a judgment in a certain garnishment before it can be entered." Black on Judgproceeding. The averments of the plea on ments, vol. 1, § 106. that subject are as follows: "When the said justice of the peace received the said telegram, he had already rendered judgment and refused to allow the answer to be amended or to suspend the judgment, but allowed said judgment to stand on the answer of the defendant herein, in and by which answer the said defendant had answered indebted to said J. R. Curtis." In the case of Lanier v. Richardson, 72 Ala. 134, the jury brought in their verdict on Saturday morning, March 4, 1882, and the court received said verdict on said Saturday morning, discharged the jury, and adjourned without setting a day to enter a judgment or decree on said verdict. On Saturday night, March 4, 1882, between the hours of 8 and 10, the court entered a decree on The facts, as agreed upon on that subject, said verdict. In speaking of this judgment, are as follows: "He then, with all due dili- the Supreme Court say, through Stone, J.: gence, sent a telegram to the said T. J. Carlisle "When the jury returned their verdict, in of Enterprise, which telegram was in form as favor of the will, the judgment of the court follows: 'Elba, Ala., Feby. 19, 1907. Hon. T. establishing it was a matter of course, unless J. Carlisle, Enterprise, Ala. Please have the verdict was set aside and a new trial Carnley to amend my answer to garnishment, granted. In this, the analogy between it and so as to suggest R. H. Arrington, as claimant a suit at law is perfect. When the verdict for the money. [Signed] S. N. Rowe.' The was rendered in this case, sustaining the said justice of the peace received the said will, the contestants were as fully informed telegram about 11 o'clock of the same morn- what the judgment would be as they were ing. At that time he was holding his court at when the minute entry was written up. Of Enterprise, had called the case in which the course, we intend this remark to apply only answer of defendant had been filed as gar- when there is no ground for arresting the nishee, had announced his decision, and when judgment. The judgment entered is but the the said telegram was received Mr. J. A. logical conclusion, resulting from the premCarnley, an attorney, was writing up a judg-ises ascertained by the verdict. In practice, ment against the garnishee, this defendant, the judgment on verdict is rarely, if ever, ancondemning the money in his hands to the nounced by the court. It follows so naturalsatisfaction of the judgment of the said ly and necessarily that it is taken for grantMary Clark. The justice thereupon refused ed. Its first actual utterance is in the readto suspend his decision, and did not continue ing of the minutes-the work of the clerk. the cause or await for any further answer | The judgment, no matter when written up, by this defendant, nor did he issue any notice to R. H. Arrington, as claimant, but, after 12 o'clock on that same day, signed the said judgment. That the said telegram was exhibited to J. A. Carnley, who was the attorney present, and representing Mary Clark on said day in said cause, before said justice of the peace, and said Carnley did not ask that said cause be suspended, or continued for the issuance of notice to R. H. Arrington." is considered and treated as given on the day the verdict is rendered. Such is the rule in trials at common law; and we think the same rule must be observed in this case." Lanier v. Richardson, 72 Ala. 134. While justices of the peace are required to keep a docket and enter their judgments in cases upon such docket, the actual final finding of a justice of the peace on the facts of a case constitutes the judgment, and not the mere writing on his docket, which is but a memorial of the judgment. At the time the telegram was received, the justice of the peace had announced his decision, i. e., had rendered his judgment on the answer of the defendant, and Carnley was, as clerk, merely entering upon the docket, as required by law, a written memorial of the judgment which had already been rendered, and when written up the judgment was effective from the moment that the justice, in his capacity as judge, had announced his decision in the case. The learned judge who tried this case was evidently of the opinion that, because the judgment of the justice of the peace had not been actually written up at the time he received said telegram, there was no judgment. It is plain, however, from the above statement of facts, that the word "decision," as used in said agreed statement of facts, was in fact the judgment of the justice of the peace. "The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and We do not think that the case of Wynn the verdict. The entry of a judgment is a et al. v. McCraney, 156 Ala. 630, 46 South ministerial act, which consists in spreading | 854, cited by counsel for the appellee has upon the record a statement of the final conclusion reached by the court in the matter, thus furnishing external and incontestable evidence of the sentence given, and designed to stand as a perpetual memorial of its action. It is the former, therefore, that is the any application to this case. In that case suit was brought against the clerk of the court, in that the clerk failed to enter a judgment shown by the judge's bench notes in the minutes of the court, and, in another count, because the clerk failed to issue execution apparent. Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge. but not formally entered on the minutes. [corded within 90 days, plaintiff was entitled to The court held in that case that the clerk a peremptory instruction, the trespass being could not enter a judgment in the minutes [Ed. Note.-For other cases, see Justices of after the adjournment of the court for the the Peace, Cent. Dig. 88 426-447; Dec. Dig. § term, and that the judge's bench notes were 135.*] not such evidence of a judgment as the law requires to authorize the issue of an execution. While a court, during the term, keeps within its breast all of its orders and judgments, and may, for proper cause, during the term, alter or annul them, nevertheless it is the rule in Alabama that a minute entry of a judgment, no matter at what hour made, relates back to the moment when the judgment of which it is the conclusive evidence was actually rendered. Action by J. W. Harper against W. W. Wood. Judgment for plaintiff, and defendant appeals. Affirmed. So far as can be gathered from the record, the action was begun in the justice court, and was for the conversion of a horse. The plea in abatement was that, when the horse was levied on under execution, plaintiff in this case interposed a claim to the horse, In the present case, the justice of the peace had rendered judgment, and the judg-made affidavit, and executed a claim bond, ment was being written by an attorney, who was acting in a clerical capacity, when the telegram was received. The telegram may have contained information which would have justified the justice in setting aside the judgment, but this he did not do, and, as above stated, when the entry of the judgment was completed and it was signed, it was a judgment as of the moment it was in fact rendered, viz., at a period which antedated the receipt of the telegram by the justice of the peace. For the above reason, the general charge requested by the appellant should have been given. and did take and receive into his possession the horse, and carried it away, and kept it for a while, and of his own volition returned the horse to the constable, and dismissed his own claim suit. Wherefore he is estopped from pursuing this action. It seems that the horse was levied on by the bailiff under an execution issued out of the justice court of J. T. Coleman in favor of W. W. Wood, and against W. C. Burke; that it was levied on the horse in question as the property of Burke, while in the possession of Harper, and was bought in by Wood at the sale. It does not appear from the bill of exceptions The judgment of the lower court is re- when the certificate of judgment from the versed, and the cause remanded. Reversed and remanded. (1 Ala. App. 422) WOOD v. HARPER. (Appellate Court of Alabama. May 31, 1911.) 1. APPEAL AND ERROR ( 1040*)-REVIEWHARMLESS ERROR. Any error in sustaining a general demurrer to a plea in abatement was harmless, where defendant on the trial had benefit of everything set up as a defense in the plea. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. 1040.*] 2. APPEAL AND ERROR (§ 692*) — RECORD BILL OF EXCEPTIONS-NECESSITY. justice court was recorded, and it does appear from the record that proof was admitted in support of the plea heretofore set out. R. J. Hooten, for appellant. Stell Blake, for appellee. PER CURIAM. The complaint contained what purported to be counts in trover, trespass, and case; and while perhaps some of them are defective in averments and subject to demurrer, yet no demurrer was inter posed. [1] The defendant filed what he styled a plea in abatement to the entire complaint, and to which a general demurrer was sustained by the court. If there was error in sustaining a general demurrer it was manifestly error without injury, as it amrmatively appears that the defendant on the trial had the benefit of everything set up as a de§fense in the said plea. The action of the trial court in excluding a certificate upon objection by plaintiff cannot be reviewed where the certificate is not set out in the bill of exceptions. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. 692.*] [2] The certificate offered in evidence by the defendant, and to which an objection by the plaintiff was sustained, is not set out in the bill of exceptions, and we are therefore unable to say whether the trial court erred in its ruling on plaintiff's objection or not. In trespass for the wrongful taking of a horse, it appeared that defendant levied upon a horse in possession of plaintiff under an execution upon a judgment in justice court against B. It did not appear whether defendant's judg[3] The bill of exceptions, which purports ment was recorded within 90 days after its rendition. Under Acts 1900-01, p. 1355, a plain- to set out all of the evidence, fails to show tiff is entitled to a lien on a judgment in jus- that the recorded judgment of the justice of tice court if the same be recorded within 90 the peace mentioned in the evidence was days. Held that, as plaintiff was owner of the recorded within 90 days of its rendition unhorse at the time execution was issued, and as it did not appear that the judgment was re- der the special act approved March 1, 1901 (Acts 1900-01, p. 1355), relating to Randolph défendant. The proof showed that the decounty, and unless it was so recorded it created no lien. The evidence, without conflict, showed that the plaintiff was the owner of the horse in question at the time of the levy of the defendant's execution on his judgment in the justice court against one Burke, and hence a wrongful taking. This justified the giving of the general charge in favor of the plaintiff on the count in trespass. fendant was on bond and could not be found by the sheriff, who, after making search to find the defendant, served defendant's counsel, he making no objection to the service on him. There was evidence introduced from which it would well be inferred that the defendant was purposely evading the service. The court, after hearing the evidence, overruled the motion to quash the venire, and put the defendant on trial; and from a judg No error appearing of record, the judgment of conviction he appeals. The only rulment is affirmed. Affirmed. NOTE. The foregoing opinion was prepared by Mr. Chief Justice Dowdell, of the Supreme Court, befort the transfer of the case to this court, and was adopted by this court. (1 Ala. App. 144) WELSH v. STATE. (Appellate Court of Alabama. June 20, 1911.) 1. CRIMINAL LAW (§ 631*)-SERVICE OF LIST OF JURORS ON ACCUSED-STATUTES-COMPLI ANCE. Acts Sp. Sess. 1909, p. 318, § 32, providing for service on accused, charged with a capital felony, of a list of jurors with a copy of the indictment, is mandatory, and a failure to strictly comply therewith necessitates a reversal. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1437-1446; Dec. Dig. § 631.*] 2. CRIMINAL LAW (§ 631*)-SERVICE OF LIST OF JURORS ON ACCUSED-STATUTES-COMPLI ANCE. ing or error complained of is the order of the court overruling the defendant's motion to quash the venire because not served on the defendant personally. Section 7840 of the Code of 1907 provides that the service of the venire can be made on the defendant "or on counsel appearing for him." Prior to this statute and under the provisions of the Laws of 1841 (Laws 1841, p. 174, § 53) and until the Code of 1886, § 4449, the statutory requirement was that the defendant must be served if in custody, otherwise service to be had upon his counsel. Before the Laws of 1841, the service was required to be on the defendant (Toulmin's Dig. Ala. p. 214, § 47) as is now required by section 32 of the act of 1909, supra, which amends section 7840 of the Code of 1907. [1] The provisions of all of these statutes have uniformly been held to be not directory merely but mandatory, a matter to which Acts Sp. Sess. 1909, p. 318, § 32, providing a defendant was entitled as a right, and a for service on accused of a list of jurors with failure to strictly comply held to be fatal era copy of the indictment, when considered in the light of the history of the legislation on the sub- ror, working a reversal of the case. State ject, limits the right of service to accused alone v. McLendon, 1 Stew. 195; Parsons v. State, and a service on his counsel is insufficient though 22 Ala. 50; Morgan v. State, 48 Ala. 65; accused is on bail and is evading service. [Ed. Note. For other cases, see Criminal Bain v. State, 70 Ala. 4; Brown v. State, 128 Law, Cent. Dig. §§ 1437-1446; Dec. Dig. § Ala. 12, 29 South. 200. 631.*] [2] Section 32 of the present law (Acts Appeal from City Court of Gadsden; A. 1909, p. 318) providing, among other things, H. Alston, Judge. for service upon the defendant of a list of Bob Welsh was convicted of crime, and he the jurors and copy of the indictment in a appeals. Reversed and remanded. W. H. Standifer and George D. Motley, for appellant. R. C. Brickell, Atty. Gen., and T. H. Seay, Asst. Atty. Gen., for the State. capital case has been held to be a mandatory 55 South. 118), and it has become the settled provision of the statute (Jackson v. State, law of the state, under the constructions of the different statutes on the subject, that the statutes granting this right to the defendant PELHAM, J. Section 32 of the act ap-in a capital case to have a list of the jurors proved August 31, 1909 (Gen. Acts Special to try his case and a copy of the indictment, Session 1909, p. 305), provides that, whenever a defendant stands indicted for a capital felony, a list of the jurors or venire for his trial, together with a copy of the indictment, must be "forthwith served on the defendant by the sheriff." The defendant was indicted for a capital felony (robbery), and before entering upon the trial made a motion to quash the venire on the ground that a copy of the venire was not served on the defendant as required by the statute. Proof was made on hearing the motion that the service was had on defendant's counsel, but not on are mandatory, requiring a strict compliance with their terms. The present law limits the service to the defendant, and authorizes it to be had on no other person, and the statute being mandatory, a strict compliance with its terms is required, and the service on any other person is without authority of law. The correctness of this construction is emphasized by a consideration of the history of the enactments on the subject. The law requiring the service to be had upon the defendant, as first enacted, was changed so (1 Ala. App. 1) CARDWELL v. STATE (Appellate Court of Alabama. June 30, 1911.) 1. CRIMINAL LAW ( 1087*)-APPEAL-MatTERS TO BE SHOWN BY RECORD-PRESENCE OF ACCUSED. that the service was authorized to be made upon defendant's counsel when the defendant was on bond, and this law was then changed so that it could be made upon the counsel appearing for a defendant in all cases, and, by the statute now in force (Act approved Aug. 31, 1909), the law on the sub-sonal presence of defendant when trial was enWhere a record affirmatively recites the perject was again changed so as to require serv- tered upon and describes the trial as a continuice upon the defendant alone. Under the ous, uninterrupted proceeding until the judgwell-known rules of statutory construction, ment of the court was pronounced on the jury's return of their verdict, it sufficiently shows the we are precluded from giving the statute in presence of the accused when the verdict was question any other meaning than that it was returned into court. intended to limit the right to serve the list of jurors and indictment upon the defendant and upon no other person. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1087.*] 2. CRIMINAL LAW ( 868*) TRIAL-CUSTODY OF JURY-OBJECTION. Where a juror was reported sick during the progress of the trial, and the court sent the jury to the jury room and permitted a physician, prethe jury room to see the sick juror, and the physent as a witness for the prosecution, to go into sician gave him medicine, but did not talk to him about anything except his sickness, and talked with no other juror, and after the juror's recovery the cause proceeded, and he remained on the jury and joined in the verdict of guilty, defendant's failure to take objection thereto until after verdict was a waiver of any objection based on the court's action. Cent. Dig. § 2070; Dec. Dig. § 868.*] [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.*] 4. CRIMINAL LAW (§ 814*)-INSTRUCTIONSAPPLICATION TO CASE. Section 32 of the act of 1909, providing for the service of the jury lists and copy of the indictment, does not require the service to be made one entire day before the day the case is set for trial, but says the jury lists and copy of the indictment must "be forth with served on the defendant by the sheriff, and the defendant shall not be entitled to any other or further notice of the jurors summoned or drawn for his trial nor of the charge or indictment upon which he is to be tried." Had the court, when the case was called for trial, ordered a service to be made upon the defendant by the sheriff then and Where defendant, upon the evidence, might there, when it was shown that an attempt have been guilty of an offense embraced in the had been made to serve him and failed, pre-resulted from a blow inflicted by another assailindictment, although the death of the deceased sumably because of an evasion of service by ant, a requested instruction, that the existence him, it would seem that this would have of a reasonable doubt whether the defendant or been a compliance with the present law, and the other assailant struck the fatal blow would a sufficient service under its requirements. entitle the defendant to an acquittal, is properly refused. If it was clear that the service had not been perfected before because of the defendant's fault in evading it, and the present statute authorizing service only on the defendant, making no requisite of one entire day, but being silent as to time, it might well be held a compliance with the statute if the service had been made on defendant upon the call of the case before entering upon the trial, by giving the defendant a reasonable time to examine the jury lists and copy of the charge before proceeding with the trial. But whether or not this would be a compliance with the constitutional guaranty contained in Declaration of Rights, § 6, securing to every one accused of crime the right "to demand the nature and cause of the accusation, and to have a copy thereof," in the light of the fact that for a number of years our statutes followed the English laws and gave two entire days, until later, in comparatively recent years, when the time was reduced to one entire day, we do not decide. We do hold, however, that the service under the present law must be had on the defendant, and, for the error of the court in overruling defendant was present in court when the verdict of ant's motion to quash the venire because not served on the defendant, the case must be reversed. Reversed and remanded. of law bearing upon the case, is properly reA requested charge, asserting no proposition fused. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1979; Dec. Dig. § 814.*] 5. CRIMINAL LAW (§ 811*)-INSTRUCTIONSSINGLING OUT PARTICULAR PHASE OF EVIDENCE. A requested charge, which singles out a par ticular phase of the evidence for the jury's consideration, should not be given. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1969-1972; Dec. Dig. § 811.*] Appeal from Circuit Court, Shelby County; John Pelham, Judge. Roy Cardwell was convicted of a criminal offense, and he appeals. Affirmed. Riddle, Ellis, Riddle & Pruet, for appellant. R. C. Brickell, Atty. Gen., for the State. WALKER, P. J. [1] The objection is made that the record fails to show that the defend the jury was returned. The objection could not be sustained without disregarding the plain import of the recitals of the minute entry, which affirms the personal presence of |