The motion for a continuance was addressed to the sound discretion of the trial court, and the exercise of this discretion is not subject to review except for gross abuse. Centennial Ice Co. v. Mitchell, 215 Ala. 688, 112 So. 239; Continental Casualty Co. v. Ogburn, 186 Ala. 398, 64 So. 619.
In the absence of a showing as to what the testimony of the absent witnesses would be, if present, it cannot be affirmed that the overruling of the motion was prejudicial, or that it was an obvious and palpable abuse of the trial court's discretion. D. S. Pate Lumber Co. v. Davis et al., 215 Ala. 547,112 So. 124; Knowles v. Blue, 209 Ala. 27, 95 So. 481.
If it should be conceded that the motion to quash the indictment stated sufficient grounds, a question of serious doubt, in view of the provisions of section 5202 of the Code of 1923, yet the evidence offered in support of the motion by the defendant disproved all grounds of the motion except the fifth, which asserts that the provisions of the statute (Code 1923, § 8665), requiring four grand juries to be organized in counties of more than 50,000 population so that in such counties two grand juries will be convened during each six months of the year, has been violated.
The appellant advances no argument showing how a lack of compliance by the court with this statute, which in this respect is directory merely, could in any way affect his rights or the validity of the indictment, and after due consideration we are unable to find any merit in this ground of his motion.
Charge 2, requested by the defendant and refused by the court, is in the following language: "Gentlemen of the jury, if the evidence or any part thereof, after a consideration of the whole of such evidence generated a well-founded doubt of defendant's guilt, the jury must acquit him;" and the appellant now insists that the refusal of this charge constituted reversible error, citing as authorities *Page 481 to sustain this contention Hunt v. State, 135 Ala. 1,33 So. 329; Turner v. State, 124 Ala. 59, 27 So. 272.
The charge approved in Hunt's Case was in the following language: "If the evidence or any part thereof after a consideration of the whole of such evidence generates a well-founded doubt of defendant's guilt, the jury must acquit him," while the charge approved in Turner's Case was: "If there is generated in the minds of the jury by the evidence in this case or any part of the same, after a consideration of the whole of such evidence, a well-founded doubt of defendant's guilt, then the jury must acquit him."
A comparison of these charges demonstrates not only that the charge in question is bad in form, but that it possesses misleading tendencies. The charges heretofore approved speak in the present tense, while the charge in question speaks in the past tense, and has a tendency to inculcate the idea that if after a consideration of the whole evidence, if any part thereof generated a reasonable doubt of defendant's guilt, he should be acquitted, though after more mature deliberation and consideration by the jury of the evidence, this doubt was dispelled. It is not an uncommon experience for first impressions arising from the facts of a given case, when considered, to be attended with doubt, while on more mature deliberation such doubt disappears. It is enough to justify the refusal of the charge that it does not speak "in the correct and appropriate terms of the law." Ex parte State ex rel. Atty. Gen. (Bush v. State) 211 Ala. 1, 100 So. 312.
Refused charge 3 justified the defendant in shooting the deceased, though he was not free from fault in bringing on the difficulty, and was refused without error. While the Court of Appeals, in Thomas v. State, 18 Ala. App. 493, 93 So. 287, approved a charge identical with charge 3, this, no doubt, resulted from a failure to observe that while it correctly placed the burden of showing that defendant was not free from fault, on the state, it did not give effect to proof of this fact or predicate defendant's right to an acquittal on the failure of the state to meet this burden. Bluett v. State,151 Ala. 41, 44 So. 84; Id., 161 Ala. 14, 49 So. 854; O'Rear v. State, 188 Ala. 71, 66 So. 81; Richardson v. State, 191 Ala. 21,68 So. 57; Glass v. State, 201 Ala. 441, 78 So. 819; Ex parte State ex rel. Attorney General, 207 Ala. 349, 92 So. 606.
Charge 1 was invasive of the province of the jury and misleading. Walker v. State, 117 Ala. 42, 23 So. 149; Ex parte Davis et al., 184 Ala. 26, 63 So. 1010.
Charge 4 is argumentative and ignores the defendant's duty to retreat, if he could do so without increasing his peril, and invades the province of the jury. Burkett v. State, 215 Ala. 453,111 So. 34.
Charge 5 authorized an acquittal, "unless each individual juror believed from the evidence that the defendant was guilty beyond a reasonable doubt." Charges of this character have been condemned. Holmes v. State, 136 Ala. 84, 34 So. 180.
The other refused charges are either unsound in principle, invade the province of the jury, or are argumentative, and were refused without error.
The conversation between the defendant, Pressley, and the persons who assisted in arresting the defendant took place about 30 minutes after the defendant had left the scene of the killing, and was so removed, in time and place, from the difficulty as not to be a part of the res gestæ. Madry v. State, 201 Ala. 512, 78 So. 866. The fact that the defendant left the scene of the difficulty immediately after the killing was brought out by the defendant on his examination in chief, and the conversation just adverted to was not admissible to explain why he had fled. It is only when the state offers evidence of flight as a circumstance tending to show guilt that it may be explained by the defendant. Terry v. State, 13 Ala. App. 115,69 So. 370; Pate v. State, 94 Ala. 14, 10 So. 665.
This disposes of all questions argued by counsel for appellant, and we have examined all other questions presented on the record and find nothing to warrant further treatment.
There is no error in the record, and the judgment of the circuit court is in all things affirmed.
Affirmed.
SAYRE, SOMERVILLE, THOMAS, and BOULDIN, JJ., concur, but would not be understood as holding that where, as here, the Court instructed the jury fully and accurately on the law of reasonable doubt, the cause should be reversed for refusal of Charge 2, if free from the defects of form noted in the opinion.
ANDERSON, C. J., dissents and is of opinion that the refusal constituted reversible error, on the authority of Hunt v. The State, 135 Ala. 1, 33 So. 329.
GARDNER, J., not sitting. *Page 482