The variance between the copy of the indictment served on the accused, and the original to which they pleaded, if an objection had been timely interposed, would have been sufficient cause for postponing the trial.. It was not available as an objection to the reading of the original indictment to the jury, informing them of the accusation on which they were to render a verdict.—Nutt v. State, 63 Ala. 180; Ezell v. State, 54 Ala. 165; Wade v. State, 50 Ala. 164.
2. By the common law, all crimes are local, and prosecution of them must be conducted in the county in which they are averred to have been committed. The constitution guaranteed to the accused, “ in all prosecutions by indictment, a speedy public trial, by an impartial jury of the county or district in which' the offense was committed.” The purpose of the coimnou law, and of the constitution, is satisfied, when the accused is secured a trial by a jury of the county exercising undisputed jurisdiction over the place at which the offense is charged to have been committed, organized and established as a political subdivision of the State. The locality of the offense enters into the jurisdiction of the court, as well as forming a material element of the rights secured to the accused. It is always a question of fact the prosecution is bound to prove, and it may be proved as other facts material to the issue are proved. If not proved, a verdict of acquittal must follow. — Whart. Cr. Ev. § 107.
3. The boundary lines of counties are but seldom marked by natural objects, or artificial monuments, discernible by the naked eye. Often they are referred to the lines of the governmental surveys of the public lands, and sometimes to places designated by names, which change, or become obsolete. There is no provision of law requiring any survey and marking of the boundaries, and a record of it as evidence of the fact. The boundary is, of consequence, subject to parol evidence; and if its location is matter of dispute, generally it must- be left to a jury to say where is its true location.—Doe, ex dem. Miller v. Cullom, 4 Ala. 576.
4. The county of Tuskaloosa was established by an act of the territorial legislature of February 7, 1818.—Laws of Ala. 86. The geographical limits and boundaries were defined; and *43of these, the one now material has remained nndesignated, and ‘ is described as “running southwardly along the main ridge-dividing the waters of'the Black Warrior from those of the Cahaba," — two rivers flowing through the central and western part of the State. That there was more -than one ridge or elevation of the earth’s surface, dividing these waters, is apparent from the statute; and it was the main, or principal ridge, which is designated as the county boundary. From the organization of the county, until within the last four or five years, one of these ridges had been uniformly recognized as forming the boundary. There had been' neither doubt nor dispute about-the fact, and to it the county had exercised jurisdiction, and the citizens residing-near tó and' within the boundary, having the deepest interest in the fact, find the'best opportunities of' ascertaining the precise line,'had'acquiesced, assuming the duties, bearing the burdens, and exercising the privileges of citizens of Tuskaloosa county. The territorial boundaries of public municipal jurisdictions, when they grow to -be ancient, are unmarked by artificial monuments; and, when there is not of them higher evidence, may be proved by general reputation. Morgan v. Mayor, 49 Ala. 349; 1 Phil. Ev. (C. & H. Notes), note 87, p. 218-19. Long, continuous, uninterrupted user, when lines and boundaries depend upon statutory references to physical objects which are'not well defined, is a practical interpretation of the statute- courts must adopt, or involve the citizens relying upon' it in embarrassments 'and uncertainties, not only as to rights of property, but-as to personal rights.—Dillon on Mun. Cor., § 125, n. 1.
Until the “Alabama Great Southern Railroad Company;”' some four or five years previous to the trial in the court below, published a map designating the lands it claimed, and their location, the place of the homicide had been recognized as within the boundary-of the county of Tuskaloosa. It was west of the ridge which was recognized as the main ridge dividing the waters of the Black''Warrior and' Callaba rivers. There was no dispute about the fact. ■ That map designated another ridge, situate further westward, as the boundary; and because of the designation, there grew up some-dispute among the citizens, as to the true boundary. The map was not the work of sworn public ofiicers, charged with the duty of ascertaining the boundaries of counties, and furnishing evidence of' them ; nor was its publication'authorized by law. As to the boundary of the county, it was not evidence, and could not lessen the force of the general reputation, and the unbroken user for sixty years, that the line was on the other ridge.
"Whether, upon these admitted facts, the place must not be deemed within the county ;of Tuskaloosa, was a pure question *44•of law for the determination of the court. If there had not been an admission of the facts made upon the trial, in the presence of the court — if their existence had been matter dependent upon the credibility of the evidence; or, if the existence of the facts had been a conclusion to be deduced by the jury from the •evidence, — the eighth and ninth charges requested should have been given. The facts being indisputable, because admitted, and from the facts the law recognizing or declaring the place of the homicide to be within the county of Tuskaloosa, the charges could not have been given without referring to the jury the determination of a mere question of law.—Gunter v. Lecky, 30 Ala. 591.
6. It was not without the province of the court to state to the jury the undisputed facts. True, the statute declares, “the court may state the evidence, where the same is disputed.”'’ Thereby the power of the court, as it was previously recognized, is enlarged. The original, inherent power of the court, to direct the attention of the jury to the undisputed evidence, is not thereby affected. We can not perceive that, in the charge given, or in the charges refused, referring to the venue, there is error. The accused have no just cause of complaint. They have been tried by a jury of the county, as its boundaries have been recognized from its earliest organization. Their right by the common law, and by the constitution, was a speedy trial by an impartial jury of the county having jurisdiction, and in fact exercising it with the acquiescence of all departments of the government, and of the adjacent county, over the place at which it is charged the offense was committed.—Speck v. State, 7 Baxter (Tenn.), 46.
7. The several instructions in reference to the killing of the deceased accidentally, were properly refused. Instructions to the jury must be founded on the evidence, and if they are not, though stating correct legal propositions, ought to be refused because abstract, and because of their tendency to mislead, and to divert the attention of the jury from the real issue.—1 Brick. Dig. 338, § 41. The bill of exceptions purports to state all the evidence; and there is an absence of any fact or circumstance tending directly, or by fair inference, to show that the killing was accidental — that it happened unexpectedly. Besides, an accidental or an unintentional homicide is not necessarily, as these instructions import, free from legal culpability. There are many facts and circumstances which may attend it, and render it criminal, and sirbject the perpetrator to punishment. If by misfortune or misadventure, while in the performance of a lawful act, exercising due care, and without intention to do harm, human life is taken, the law will excuse. There must, however, be a concurrence of these facts, and the *45absence of any one will involve in guilt.—Whart. Horn. §§ 470-74.
8. The third and fourth instructions are based on the proposition, that if the deceased was killed while one of the defendants was shooting at some other person, or at Hill, then the defendants should be acquitted. It is scarcely necessary to say the proposition can not be supported. Their guilt or innocence, in such a state of facts, would depend on an inquiry the instructions do not propound- — upon the inquiry whether they would have been guilty or innocent, and, if guilty, of what degree of homicide, if the fatal blow had fallen upon and killed the person against whom it was directed. — "Whart. Horn. §§ 42-47. This inquiry the instruction withdraws from the consideration of the jury, and requires an acquittal of all guilt, simply because the fatal' shot reached and killed a person against whom it was not aimed.
9. Tlie fifth instruction is ambiguous, and, if given in the terms requested, would have been calculated to confuse and mislead the jury, if it had not been explained. The court may very properly refuse all such instructions. — 1 Brick. Dig. 339, §§ 59-61. It is not a probable possibility the evidence in a criminal cause ought to exclude, but a reasonable cloubt. The test is, whether the circumstances and facts in evidence produce in the minds of the jury a moral conviction, to the exclusion, not of possibilities, but of reasonable doubt.
10. Though one of the defendants may not have participated in the shooting, and though from the wound inflicted by the shooting the deceased would have died most probably, or certainly; yet, if death was hastened by the blows with the gun which he gave, he was guilty of murder, or other criminal homicide, according to the circumstances of the case. It was not simply in the ordinary course of nature, by the visitation of God, that death came. The unlawful and intentional violence of the defendant contributed to, and accelerated the termination of life; cmd it is not permitted to the offender to apportion his wrong.—1 Russ. Crimes, 701; State v. Morea, 2 Ala. 275. The 12th and 23d instructions were properly refused.
These instructions, it must, be observed, do not assert that, if one person unlawfully inflicts a fatal wound, and, while the victim is languishing, he is killed by the separate, independent, unlawful act of another, the latter only is guilty of the homicide. This erroneous proposition is asserted — that he who inflicted the first fatal blow is alone guilty, and the other, though with malice he gave the blow accelerating death, is guiltless. And it must be observed, the proposition is asserted, though the author of the last violence, after the first blow was *46given, may have intervened in the affray in which that blow was given, to aid and assist him who indicted it. In such case, the parties are jointly liable, and neither can be relieved because of the liability of the other.
11. Drunkenness, of itself, when voluntarily produced, does not excuse or palliate an offense. In cases of homicide, it may be material in determining the degree — whether it is murder in the first, or murder in the second degree. Willfulness, premeditation, and deliberation must concur with malice, to constitute murder in the first degree. These involve an inquiry into the state of the mind of the accused at the time of the killing; and, of consequence, it is proper to inquire whether he was then drunk or sober; and, if drunk, whether the intoxication rendered him incapable of premeditation and deliberation. Mere drunkenness, a mere temporary fit of intoxication, can not excuse a homicide.—State v. Bullock, 13 Ala. 413; Mooney v. State, 33 Ala. 419; Beasley v. State, 50 Ala. 149; Pirtle v. State, 9 Humph. 63. The vice of the charge requested, in reference to the drunkenness, is apparent. If given, it would have authorized an acquittal, though the jury may have been satisfied the homicide was malicious and voluntary.
12. The former assault, made by the deceased upon one of the defendants, was not a fact which could be considered as having a tendency to show that the homicide was in self-defense. The quarrel in which that assault was made, had been quieted, and the parties had come together on friendly terms. When the killing occurred, the deceased was not an assailant — by no act or word proceeding from him could either of the defendants have been impressed with an apprehension that they were in peril of life, or of grievous bodily harm. The 24th instruction ivas properly refused, for,- if given, it would have served no other purpose than to mislead the jury.
We find no error in the record, of prejudice to the appellants, ■and the judgment must be affirmed.