[Lewis v. State.] the defendant, armed with a pistol and knife, and had drawn a pistol, and had it presented at defendant at the time, then he had the right to shoot in self-defence, if they believe the deceased was pursuing him with a hostile intent. It This charge was not an accurate enunciation of the law of self-defence. The right of self-defence is simply the right to repel force by force unlawfully exerted. The repellant force, thus permitted to be used, must be protective, and not merely aggressive. Shippy's Case, 10 Minn. 223; Holmes v. The State, 23 Ala. 17. When protection is achieved, the legitimate end of the force allowed to be resorted to is accomplished. It should then cease. Upon this principle, it is allowed to take life in order to protect life, or to protect the person assailed from serious bodily harm. Oliver v. The State, 17 Ala. 587, 598. But the danger to the life or limb of the slayer must be apparent and pressing, and it must be of such degree and character as threatened a fatal result, in order to justify a homicide. A mere pursuit "with hostile intent" is not enough. And this is all that the charge asserts. But the pursuit must be coupled with an intent and a capacity, or seeming capacity, to take life, or to inflict some great bodily harm upon the party pursued. must appear that the assailant, by his conduct and acts, impressed the mind of the slayer that it was his purpose to kill at the time of the fatal blow. The deceased must not only have the means at hand for effecting a deadly purpose, but it must also appear, by some act or demonstration of his, that it was his intention at the time of the killing to carry out his purpose, thereby indicating a reasonable belief on the part of the slayer, that it was necessary to deprive the assailant of his life to save his own. Harrison v. The State, 24 Ala. 67; Prichett v. The State, 22 Ala. 39; Dupree v. The State, 33 Ala. 380. The proposition of the charge here insisted on seems to be this: If a person, having about him a pistol and dirk, or knife, the pistol being presented, pursue another "with hostile intent," the pursuer may be killed by the person pursued, in self-defence. In this form, the proposition wholly omits the impending necessity that should exist for the killing, in order to protect the life or limb of the slayer. This necessity is an ingredient of the excuse. It cannot be assumed, or a mere hostile pursuit substituted in its place, unless the jury find that the hostile pursuit was itself a fatal menace to the life or person of the slayer. 2. But, beside this, the charge should not have been given for another reason. The testimony tends to show that the defendant was the first aggressor; that his demand upon the deceased was an improper and illegal claim. It was money, or something else, won at gaming, which was not the subject [Lewis v. State.] of a legal claim. Rev. Code, §§ 1874, 1875, et seq. It has long been settled in this country, that one cannot bring upon himself the very necessity which he sets up for his defence. The proof very clearly shows that the defendant, after the first quarrel, went off, and returned with his gun, to shoot the deceased if he refused to do what he had previously requested. This put him wholly out of the pale of the right of self-defence, unless it was shown that after his return he declined the combat, which was not the case here. He was, therefore, wholly inexcusable. Neeley's Case, 20 Iowa, 108; S. C. Cases on Self-Defence, p. 96, and cases there cited. The refusal of the charge above quoted was, therefore, free from error. 3. The next objection is to the judgment of conviction. It is that it is not sustained by the verdict. The verdict is in these words: "We, the jury, find the defendant guilty of murder in the second degree, and recommend his sentence to the penitentiary for twenty years." This verdict is founded on the Code. The Code declares, that " any person, who is guilty of murder in the second degree, must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor for the county, for not less than ten years, at the discretion of the jury.' Rev. Code, § 3654. It is contended for the defendant, that the word recommend does not sufficiently declare the exercise of discretion by the jury in fixing the period of the imprisonment in the penitentiary. It is true that this is not possibly the most apt word that could have been used in such a case. But it certainly fixes the time of the imprisonment with sufficient clearness to enable the court to carry the verdict into effect by its judgment. This is enough. The court will construe the language used in reference to the purpose necessarily intended. 4. It is also further objected, that the record does not show that a copy of the indictment, and a list of the jurors summoned for his trial, including the regular jury, were delivered to the defendant at least one entire day before the day appointed for his trial. This is only necessary when the defendant is in actual confinement." Rev. Code, § 4171. Here, the record is wholly silent as to whether the defendant was in custody or not. But there was an order of the court, requiring such delivery of the copy of the indictment and list of the jury. And there was no objection in the court below that this order was not properly executed. It will, therefore, be presumed that the officers of court did their duty, or that the execution of the order was waived. This objection is not sufficiently sustained. 5. It is also contended, that the order for the summoning [Lewis v. State.] of the jurors for the trial of the accused is not made in conformity with law. The law prescribes that, "For the trial of a person charged with a capital offence, or two or more such persons tried together, the court must make an order, commanding the sheriff to summon not less than fifty, nor more than one hundred persons, including those summoned on the regular juries for the week, or term when the term does not exceed one week." Rev. Code, § 4173. In this instance, the cause was tried in the circuit court of Lauderdale county. The court in this county may continue in session for two weeks. Rev. Code, § 750, page 232. The order of the court in this prosecution was to summon one hundred persons, “including the regular juries for the week, to be passed on, on Wednesday, the 15th day of April, 1874." This order was a substantial compliance with the section of the Code above quoted. 6. The last objection urged to the proceedings in the court below is to the oath administered to the jury on the trial. Upon this question, the record makes the following recitals: "Wednesday, April 13th, 1874. And now comes again the solicitor, and the defendant at the bar; and the issue being joined between the people of the State of Alabama and the prisoner at the bar, comes a jury of good and lawful men, to wit, Lewis Hudson and eleven others, who, being duly elected, charged, and sworn to well and truly try, and true deliverance make, between the people of the State of Alabama and the prisoner at the bar, upon their oaths do say," &c. This oath cannot be sustained. It is not substantially the oath required and prescribed by the statute. Rev. Code, § 4092; 37 Ala. 161; 47 Ala. 9; 47 Ala. 50; De Bardelaben v. The State, January term, 1874. The issue in a criminal prosecution in this State is not between "The people of the State of Alabama" and the prisoner at the bar. The constitution prescribes that "The style of all processes shall be The State of Alabama, and all prosecutions shall be carried on in the name, and by the authority of, The State of Alabama,' and shall conclude, against the peace and dignity of the same." Const. of Ala. 1867, Art. VI. § 19. The issue in this prosecution is, therefore, between "The State of Alabama" and the prisoner at the bar, the said Elijah Lewis. The oath administered in this case was to try an improper issue, and was not in the form prescribed by law. This was error. For this error, the judgment of the court below is reversed, and the cause is remanded for a new trial, on a charge of murder in the second degree. See Bell & Murray v. The State, 48 Ala. 684; Rev. Code, § 3654. The appellant, said Elijah Lewis, will not be discharged, except by due course of law. [Koppersmith v. State.] Koppersmith v. The State. Indictment for Causing False Alarm of Fire. Giving or causing false alarm of fire by telegraph. To authorize a conviction "for giving, or causing to be given, a false alarm by the fire-alarm telegraph in the city of Mobile, knowing the same to be such" (Sess. Acts 1870-71, p.), it is not necessary that the defendant should have caused the bells to be rung in the regular manner, which would have indicated the place of the fire, nor that the firemen should have been deceived by the false alarm, and induced by it to turn out with their engines. It is sufficient that he knowingly meddled with the wires, or other part of the telegraph apparatus, with the intention to cause a false alarm of fire, and did cause such false alarm. FROM the City Court of Mobile. Tried before the Hon. C. F. MOULTON. The indictment in this case, which was found at the February term, 1874, contained two counts: the first charging that the prisoner" gave a false alarm by the fire-alarm telegraph in the city of Mobile, knowing the same to be such ;" and the second that he "caused to be given" such false alarm. The indictment was founded on the act approved February 25, 1871, entitled "An act for the protection of the fire companies in the city of Mobile," the material portions of which are quoted in the opinion of the court. On the trial, as the bill of exceptions states, the prisoner requested the court to give the following charges to the jury, which were in writing, and were refused by the court. "1. If the jury believe, from the evidence, that the alarm from box No. 18, the subject of the prosecution in this case, said to have been given on the night of the 17th January, 1874, was confused and unintelligible, it is not a false alarm within the meaning of the act under which the indictment was found. "2. To constitute a false alarm, within the meaning of said act, it must be a true and intelligible striking of an existing number of some one of the boxes of the fire-alarm telegraph, at a time when there was no fire, or reasonable cause to believe there was one, and with the intent to give such false alarm; and if the striking complained of was no such striking, then they ought to find for the defendant. 3. The fire-alarm telegraph is used only for the purpose of giving alarms of fire; and when the act speaks of a false alarm, it means a false alarm of fire; and if the jury believe, from the evidence, that the ringing of the bell caused by the manipulation of box No. 18 did not give such an alarm as would cause the firemen to believe there was a fire in the city, then they must find the defendant not guilty." The refusal of these charges, to which the defendant excepted, is now assigned as error. [Koppersmith v. State.] BOYLES & OVERALL, for the prisoner. The act under which the indictment was found, as its title imports, was intended "for the protection of the fire companies of the city of Mobile;" and it must receive a reasonable construction to carry that intention into effect. It is, morever, highly penal, and must, therefore, be strictly construed. No reasonable construction can make out the offence from the facts proved. It was shown that the ringing of the bells from box No. 18 "was confused and unintelligible" that no particular number was indicated that the firemen were not misled by it, nor induced to run out their engines, nor put to any trouble or inconvenience whatever; that it was not, in fact, a "false alarm." Ben. Gardner, Attorney General, for the State. B. F. SAFFOLD, J.-The offence alleged in the indictment is declared by the first section of the act approved February 25, 1871, entitled "An act for the protection of the fire companies in the city of Mobile," which is in these words: "Be it enacted," &c., "That any person or persons giving, or causing to be given, a false alarm by the fire-alarm telegraph in the city of Mobile, knowing the same to be such, or who intentionally injures or defaces any portion of said fire-alarm telegraph, must be punished, on conviction, at the discretion of the jury, by fine and imprisonment in the county jail, for not less than six, nor more than twelve months, or by hard labor for the county for not more than one year." The indictment charged, in one count, that the defendant "gave a false alarm by the fire-alarm telegraph in the city of Mobile, knowing the same to be such ;" and in another that he caused the alarm to be given. The operation of the telegraph was explained to the court and jury. There was a chief bell, which sounded the alarm throughout the city, and was set in motion by a proper manipulation of any one of several boxes placed at the various buildings containing the fire-engines. This manipulation not only sounded that bell, but struck its own number on it, and on the apparatus attached to every other box, so that the firemen were apprised, not only of a fire, but also of its location or vicinity. The ringing of the bells at the time of the false alarm charged was also described by the witnesses, and some of the evidence tended to prove that the sounds made by it "were confused and unintelligible." Whoever tampered with box No. 18, on the occasion referred to, by applying pieces of wood under the wire, contrived that it should not strike its own number correctly, but should ring the chief bell, and perhaps those at the other boxes, continuously. |