The judgment entry as shown by the record contains the following recital: “The defendant then being arraigned under said indictment filed his plea of former acquittal in this case and also plead not guilty, and upon these pleas the State by her solicitor took issue,” etc. The bill of exceptions contains the statement that the plea of former acquittal -was upon motion of the solicitor stricken from the. file. Thus it will be seen that there is a seeming conflict between the recitals in the judgment entry and the bill of exceptions. “Where a conflict arises between recitals in the bill of exceptions and the judgment entry, as to a matter which should be contained and set out in the judgment, as a general rule, the recital in the latter will prevail.” Butler & Stevens v. Savannah Guano Co., 122 Ala. 326; citing Danforth & Armstrong v. Tenn. & Coosa R. R. Co., 93 Ala. 614, and Courie & Co. v. Goodwin, 89 Ala. 569. See also Brinson v. Edwards, 94 Ala. 447; Dannelley v. State, 130 Ala. 132.
There can be no doubt but that the issue upon which a cause is tried are properly recited in the judgment entry, and will prevail over a contradictory statement in the bill of exceptions. So, according to the record the case -was submitted to the jury upon both pleas at the same time: The verdict of the jury was not responsive to the plea of former acquittal, but only to the plea of not guilty. The defendant was entitled to a responsive verdict on his plea of former acquittal, and this he did not have according to the recitals in the judgment. For this reason the judgment must be reversed. — Davis v. State, 136 Ala. 129; Moody v. State, 60 Ala. 78; Dominick v. State, 40 Ala. 680.
The motion to quash the indictment was properly *102overruled. It was shown that J. K. Abernathy had been duly elected as one of the court of county commissioners, and entered upon the discharge of his duties as such, though he had not received his commission from the Governor. Under these circumstances, the fact that he acted with the other commissioners in the drawing of the juries before receiving his commission, did not vitiate such drawing. — Cary v. State, 76 Ala. 78.
There was no error in sustaining the motion to strike the plea set out in the bill of exceptions. The affidavit and warrant attached to the plea as an exhibit, and which was so attached as a description of the offense, and for the purpose of showing that it was the charge or offense upon which he, the defendant, was tried before the probate judge sitting as the judge of the county court, charged the defendant with a felony, namely, assault with the intent to murder. The judge of the county court had not final jurisdiction of the offense charged, the same being a felony, his jurisdiction was that of a committing magistrate. The affidavit and warrant were sufficiently definite in the description of the offense, (Criminal Code, Chapter 178, Art. 1, p. 403), and plainly showed that the offense charged was a felony. The plea presented no defense to the indictment and was subject to the motion to strike, as being frivolous. We have considered the question of striking the plea, not that it is properly raised and presented by the bill of exceptions, since the record show's no judgment on the motion to strike, but as the judgment is to be reversed and the cause remanded for another trial, the question will again arise, and for that reason we have considered it. The record proper apart from the recitals in the judgment, fails to show that any pleas were filed. • Pleadings and the rulings thereon should be shown by the record, and where a motion to strike pleading is ruled on, a bill of exceptions is proper to show the motion and that an exception was reserved to the ruling, but, at the same time, the record proper should show that a judgment was rendered by the court.
There was no error in overruling the defendant’s ob*103jection to the testimony of the witness Kelly. That the defendant was in the vicinity on the evening of the commission of the crime was a circumstance admissible in evidence against him, its weight being for the jury. — Ba-l r v. State, 126 Ala. 69; Campbell v. State, 23 Ala. 44.
There was no error in admitting the evidence of the witness Hyde over defendant’s objection. The party assaulted vras shot from ambush. He had a difficulty with defendant on the morning of the day of the alleged assault. The declarations of the defendant a fevr days before this when talking about the person assaulted to the effect, that if he should ever have a difficulty wdth Truel t, the party alleged in the indictment to have been assaulted, that he, defendant, would not fight a fair fight, etc'., was proper to go to the jury to be considered by them in connection with other circumstances tending to connect with the crime charged. — Hudson v. State, 61 Ala. 333; Myers v. State, 62 Ala. 599.
There were a number of charges requested by the defendant and which were refused. The first charge requested uns as follows: “If the jury believe the evidence in this case they will find in favor of the defendant on his plea of former acquittal or former jeopardy.” The bill of exceptions contains no evidence to support such plea. The charge, therefore, Avas abstract, and for that reason was properly refused.
Charges 2 3, 5, 8, 9 and 10 have the infirmity of being argumentative or misleading, and in some of them both faults. — Pickens v. State, 115 Ala. 42, 50; Crawford v. State, 11.2 Ala. 27; Amos v. State, 123 Ala. 50.
A charge similar to charge 4, requested by the defendant, was pronounced good in the case of Pickens v. State, supra. The charge should have been given.
There was no error in the refusal to give charges 6 and 7 requested by the defendant. — Thornton v. State, 113 Ala. 43; Bland v. State, 75 Ala. 574; Banks v. State, 72 Ala. 522.
Charges 11 and 12 wrere properly refused. It is not required that the testimony of witnesses shall “declare positively” that the defendant is guilty. Charge 13 wms bad. Charges similar to this were condemned in Vaughn v. State, 130 Ala. 18, and authorities there cited.
*104Charges 14 and 15, if for no other reason, were properly refused as being argumentative. Similar charges have been repeatedly condemned by this court. — Compton v. State, 110 Ala. 24; Sanders v. State, 134 Ala. 74; and authorities cited in these cases.
The judgment will be reversed for the errors pointed out, and the cause remanded.
Reversed and remanded.