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[Wren v. The State.) concerned in the keeping or exhibition thereof, against the peace," &c. The case having been transferred to the County Court for trial, the defendant there pleaded in abatement, “that his name is not J. R. Wren, but his true and correct name is James S. Wren, by which name he is called and known; and he prays judgment," &c. A demurrer to this plea was interposed, on these grounds: "1st, because said alleged misnomer is immaterial, 2d, because it makes no difference whether the letter in the middle of the defendant's name is inserted or omitted ; 3d, because the indictment alleges that the defendant's name, other than is therein expressed, is unknown to the grand jury; 4th, because the plea does not truly set out the manner in which the defendant's name is stated in the indictment." The court sustained the demurrer, and the defendant then pleaded not guilty; on which issue was joined, and a trial had before the court without a jury. On all the evidence adduced, which it is unnecessary to set out, the court found the defendant guilty as charged, and imposed a fine of $500 ou him; to which judgment he duly excepted, as also to the judgment on the demurrer; and he now urges these matters

as error.

R. GAILLARD, and J. Y. KILPATRICK, for the appellant.

II. C. TOMPKINS, Attorney-General, for the State.

BRICKELL, C. J.-Pleas in abatement, in civil or in criminal causes, are not favored. Matters of form, in them, are regarded as matters of substance. They are construed most strongly against the pleader, and cannot be sustained, unless they negative the existence of every fact, and repel every inference, however slight, crossing the matter relied on in the plea.- Powers 1. State, 4 Ala. 531; State v. Brooks, 9 Ala. 9; Roberts v. Heim, 27 Ala. 678. If the matter of the plea is the misnomer of the defendant in an indictment, the plea must not only aver the true name of the defendant, but must negative the fact that he is or was known and called by the name employed in the indictment. These are essential averments, as is shown by all approved precedents of the plea. The want, in the present plea, of a negation of the fact that the defendant was known and called by the name by which he was indicted, is fatal to its sufficiency. The negation can not be implied from the attirmation that he was known and called by the name averrer to be his true and correct name.

The indictment, founded on section 4208 of the Code, was by the grand jury returned into the Circuit Court, and by that court, in obedience to the statute approved February 23, 1881, entitled (Wren v. The State.] “An act to confer additional jurisdiction upon the County Court of Wilcox county, and to regulate proceedings therein (Pamph. Acts, 1880–81, p. 295), transmitted for trial to the County Court. The trial was had before the judge of the County Court, without the intervention of a jury, the defendant not demanding, and, by the failure to demand, waiving a jury trial.

It can scarcely be controverted, that there was before the court legal evidence, having a tendency to establish the fact, that the defendant had been engaged in keeping and exhibiting a table for gaming, or was interested or concerned in the keeping or exhibiting of such table. There were tables for gaming during the fair in Camden in the fall of 1880, and these tables were in a room in a hotel known as Camden Hall. The room was engaged by the defendant, from the proprietor of the hotel, the defendant saying, he would want some tables." It was occupied by the defendant, Thomas, and others. In the room, three tables were used in playing a game at cards, known as draw poker. Checks were used, as the representative of money, in playing the game, and these were sold to the players by Thomas, or by the defendant. From the pool, or pot, which was the checks or money staked by the players, for certain hands, a toll, or pinch, was taken, sometimes by Thomas, and sometimes by the defendant. What are the deductions, or inferences, from these facts, it was for the court to determine; as it would have been for the jury, if the trial had been by jury. This court will not reverse the judgment, unless it is manifest that there is a want of evidence to support it.-Canothorn v. State, 63 Ala. 157; Summers v. State, in manuscript.

It is insisted that the statute does not extend to a table kept or exhibited for the playing at cards, of such games as it pears were played on these tables, but that it embraces only banking names, such as faro, roulette, &c. The words of the statute are clear and unambiguous, extending to all gaming, of whatever name, kind, or description, not regularly licensed under the laws of this State; and is the successor of a former statute directed against the particular games and tables referred to (Clay's Dig. +33, 12), which was found insufficient to meet and suppress the evil practice of gaming, and to avoid the artifices resorted to for its evasion. It is the use for which a table is kept or exhibited, that brings its keeping or exhibition within the condemnation of the statute. If the use is gaming, in any of its forms, or by any of its names, or with any of its appliances, and it is not licensed, whosoever keeps or exhibits, or is interested or concerned in the keeping or exhibition, violates the statute.-- Toney v. State, 61 Ala. 1.

It may be true that one who merely renders occasional or

ap (Bain v. The State.] casual assistance to another who keeps or exhibits a table for gaming, does not come within the statute. But there was evidence tending to show that the defendant had authority over the use of the tables, having custody or possession of them, and gave supervision to the gaming. The sufficiency of the evidence, was for the determination of the County Court, and if the court was satisfied that he had authority over the use of the tables, had possession or custody of them, and supervised the gaming, then he kept a table for gaming; or, if he had an interest in whatever of gain was derived or expected to be derived from the use of the tables for gaming, he was interested or concerned in keeping or exhibiting a table for gaming.

The judgment of the County Court is affirmed.

Bain V. The State.

70 94

4 29

Indictment for Murder.

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1. Right to copy of indictment and list of jury.—Where a person, indicted for murder, is out on bail, and his counsel make timely application for a copy of the indictment and a list of the jurors summoned for his trial, one or both (Code, 9 4872), such copy and list must be furnished one entire day before the day set for the trial.

2. Self-defense. - To make out a case of self-defense under an indictment for murder, “it is necessary that the difficulty should not have been provoked or encouraged by the defendant; that he was at the time so menaced, or appeared to be so menaced, as to create a reasonable apprehension of the loss of his life, or that he would suffer grievous bodily harm; and that there was no other reasonable mode of escape from such present impending peril.”

3. Charge on eridence, inrading prorince of jury.—“That which rests merely on parol evidence, unless the record affirmatively shows that the fact was conceded, or uncontroverted, can not properly be treated as established fact in charging the jury.”

FROM the Circuit Court of Marshall.
Tried before the Hon. LEROY F. Box.

The indictment in this case charged that the defendant, James Bain, "unlawfully and with malice aforethought killed Bluford Johnson, by shooting him with a pistol.” When the case was called for trial, as the bill of exceptions shows, the defendant “ objected to being put upon his trial, because the list of jurors ordered to be summoned by the sheriff had not been served on him or his counsel an entire day before the day fixed for his trial;" and he reserved an exception to the overruling of this objection, under the facts stated in the opinion of the court. (Bain v. The State.] During the trial, as the bill of exceptions further shows, two witnesses for the State testified, in substance, that the defendant, having a pistol in his hand, came into a gin-house where the deceased was weighing cotton, and ordered him to leave; that the deceased asked “What for?" and started towards him; that the defendant immediately fired his pistol at the deceased, and, in the fight which then ensued, killed him, having shot him several times. On the part of the defendant, several witnesses, relatives of the defendant, testitied to previous threats made by the deceased against the defendant, and communicated to the latter; and several witnesses, who were present and saw the difficulty, testified that the deceased, when ordered to leave the gin-house, grasped the defendant by the collar, or shoulder, and struck him; that the defendant was falling when he tired the first shot, and that the other shots were fired while the parties were on the ground, the deceased being on top of the defendant. Four witnesses for the defendant each testified, that the deceased was a strong, heavy-set, athletic man, about fortyfive or fifty years old ; that he was lame in one leg, so that he limped perceptibly; and that he was larger and stronger than the defendant." The defendant's father, to whom the gin-house belonged, testified, on behalf of the defendant, “that said ginhouse had been sold by him to the deceased some monthis before the killing, but the sale had been rescinded between them some time prior to the killing, and he had turned the gin-house and the mill over to the defendant.” The defendant requested the court, in writing, to charge the jury as follows: "If the jury believe, from the evidence, that the defendant had the right to the actual control of the gin-house, and ordered the deceased to go out; and that the deceased, instead of going out, advanced upon the defendant, and made an attack on him, and took hold of him, and struck him, or attempted to do so; and if, by reason of such attempt, or actual assault, and the superior strength of the deceased, and the precedent threats of the deceased to kill the defendant before sunset of that day, the jury believe (the defendant] had just ground for believing that he was in imminent danger of losing his life, or receiving great bodily harm, and under such belief shot the deceased,--then the defendant had the right to kill the deceased.” The court refused this charge, and the defendant excepted to the refusal.

WYETH & Boyd, for appellant.

H. C. TOMPKINS, Attorney-General, for the State.

STONE, J.-The defendant was under indictment for murder, but had been enlarged on bail. Soon after the presiding [Bain v. The State.] judge made an order, setting a day for the trial, and directing the sheriff to summon the requisite number of special jurors therefor, counsel for the defendant made an application to the sheriff to be furnished with a list of the jurors thus ordered to be summoned, “an entire day before the day appointed for the trial.” The sheriff did furnish defendant's counsel with a list of the jurors summoned, but not one entire day before the day appointed for the trial. The State, through its solicitor, announced ready for trial; but the defendant objected to being put on trial, for the reason above stated. Defendant's objection was overruled, and he reserved an exception to this ruling.

Section 4872 of the Code of 1876 has been the statnte law of this State long before and ever since the adoption of the Code of 1852, without verbal alteration, except that under that Code the service was required to be made two entire days before the trial. In all the late compilations, it has been one entire day.-Clay's Digest, 459, $ 53; Code of 1852, $ 3576; Stone & Shepherd's Code, $ 619; Rev. Code, S4171. The language

of that section is not so clear nor complete as is desirable, nor as the magnitude of the subject would seem to demand. The same language is applicable alike to the duty of furnishing to the accused a copy of the indictment, and a list of the jurors summoned for his trial. If there are categories in which the accused has no right to demand a list of the jurors summoned, then to the same extent is he without authoritative right to demand a copy of the indictment preferred against him. The first clause of the section is too clear to admit of questioning construction. If the accused is in actual confinement, “a copy of the indictment, and a list of the jurors summoned for his trial, ... must be delivered to him, at least one entire day before the day appointed for his trial.” To disregard this, would be clearly a reversible error. So, if the accused “is not in actual custody, and has counsel, whose names are so entered on the docket, such counsel inust, on application, be furnished with a copy of the indictment, and a list of the jurors. " This guarantees the clear right to a copy of the indictment, and a list of the jury. It is silent as to the time they shall be furnished. If they are delivered to counsel, at the very moment the defendant is required to announce whether or not he is ready for trial, is this a compliance with the statute? And if it is not, what length of time must elapse between the service and the trial? But, under a literal construction, there are categories not provided for. Suppose the defendant is ont on bail, and yet is unable to employ counsel. Is it the duty of the court to assign him counsel? A literal interpretation of the language of the statute fails to affirm such duty. Suppose, further, he has counsel, but his counsel's name is not so entered on the

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