
    Jones v. The State.
    
      Indictment for Murder.
    
    1. Homicide; evidence as to identity of weapon admissible. — On a trial under an indictment for murder, where the evidence shows that the wounds from which the death of the deceased resulted were incised wounds, it is competent for a witness for the State to testify that the defendant owned a knife, and that he had seen the defendant with such knife, and that the knife introduced on the preliminary trial was th.e knife he had seen the defendant with; such evidence tending to show that the defendant was provided with the means of inflicting the wounds described as causing the death.
    2. Confessions; admissibility thereof. — Statements made by the defendant to an officer just after his arrest, with reference to the homicide with which he was charged, which are shown to have been made without any threats or inducements on the part of the officer, are voluntary and admissible in evidence as confessions.
    3. Homicide; admissibility of evidence. — On a 'trial under an indictment for murder, where it is shown that the wounds resulting in the death of the deceased were incised wounds, and there was evidence introduced tending to show that the defendant owned a knife, and that the knife introduced on the preliminary trial was the knife the defendant had been seen with, the testimony of a witness that the defendant admitted on the preliminary trial that the knife there exhibited be- ■ longed to him, is admissible.
    4. Indictment for murder; when no variance in character of weapon used. — Under an indictment which charges that the defendant killed the deceased by cutting him with a knife or by stabbing him with a knife, a conviction may be had if it be proved that some other instrument was employed which occasioned a wound of the same kind as the instrument charged; and a charge which so instructs the jury asserts a correct proposition of law and is free from error.
    5. Homicide; charge of court to jury. — On a trial under an indictment for murder, where there is evidence from which the jury might infer the existence of the ingredients of murder in the first degree, general affirmative charges in favor of the defendant which instruct the jury that if they believe the evidence they can not find the defendant guilty of murder in the first degree, are erroneous and properly refused.
    6. Homicide: charge as to weapon used. — On a trial under an indictment for murder, which charges that the deceased was killed by being stabbed with a knife, a charge is erroneous and properly refused which instructs the jury that “Unless the evidence shows to the minds of the jury beyond all reasonable doubt that the deceased came to his death by being stabbed with a knife, or cut with a knife, then you can not 'find the defendant guilty.”
    Appeal from the Criminal Court of Jefferson.
    Tried before the Hon. Samuel E. Greene.
    •The appellant in this case, Albert Jones, was indicted, tried and convicted for the murder of Walter Cotton, and was sentenced to be hanged.
    The indictment charged that before the finding of the indictment, the defendant ‘‘unlawfully and with malice aforetb ought, killed Walter L,' Cotton by cutting him with a knife or by stabbing him with a knife.”
    On the trial of the case it was proved by a practicing physician that he was called to see the deceased and he found him dead when he arrived at the scene; that upon examining the deceased, he found two incised wounds, one in his head between his eyes and the other inside of the thigh, which severed a large artery. This Avitness further testified that either wound, in his opinion, would have caused death.
    Austin Stinson, a witness for the State, testified that the killing of the deceased by the defendant occurred in the Atlantic and Pacific Tea Store in Birmingham; that he, the Avitness, Avas in the store, at the time; that some words passed between the deceased and the defendant, Avhen he heard a scuffle and Cotton, the deceased fell, and tlu> defendant fell-on top of him; that the defendant. then got up and ran out of the door; that upon going to the deceased he saw a wound in the head and in the thigh; that blood was spouting, from the latter wound and Cotton died in about. 15 minutes. This witnes.s further testified that, the defendant owned a, barloAV knife, but that he did not see it in defendant’s possession that day or tbe day before; that on tbe day previous be did see tbe defendant with the knife; that some days before the killing he had borrowed the knife from the defendant; that he saw the knife exhibited on the preliminary trial and it was the one he had seen, the defendant with. The de" fendánt objected to this testimony of the witness. Stin'son, and moved to exclude it on the ground that it was illegal and incompetent. The 'court overruled the objection and the defendant duly excepted.
    One Will Patton, a witness for the State, testified that he was. the officer who arrested the defendant a short time after the killing of deceased; that he made no threats or inducements to the defendant to get him to make a statement, but asked him what was the trouble with Cotton, and that thereupon the defendant said that after some words between them 'Cotton struck him with his fist and he, the defendant, went to cutting him and cut him two or three times. The defendant objected to the witness testifying to the statements as made to him by defendant, upon the ground that the statements were made by the defendant to an officer while under arrest and under duress. The court overruled the objection, and to this ruling the defendant excepted. The witness Patton further testified that the defendant admitted that the knife introduced on the preliminary trial belonged to him. To this statement of the witness the defendant objected and'moved the court to exclude the same on the ground that is was irrelevant, illegal and incompetent. The court overruled the objection and motion, and to this ruling the defendant duly excepted.
    In his oral charge to the jury the court, among other things, instructed them as follows: “That while the defendant was charged with killing Walter Cotton, the. deceased, with a knife, that if the killing was done with ah instrument of like kind, that is a cutting instrument, this allegation of the indictment would be sustained.”
    The defendant separately excepted to this portion of the court’s oral charge’, and also separately excepted to the court’s refusal to give the following charges requested by him: (1.) “If the jury believe the evidence in this case, they must find the defendant not guilty.” (2.) ■“I charge you., gentlemen, that from the evidence produced in this case, the defendant is not guilty of murder.” (3.) “If the jury believe the evidence in this cause, they can not find the defendant guilty of murder in the first degree.” (4.) “Unless.the evidence shows to the minds of the jury beyond all reasonable doubt, that the deceased came to his death by being stabbed with a knife, or cut wth a knife, then you can not find the defendant guilty.”
    Andress & Bttrkhart, for appellant.
    Massey Wilson, Attorney-General, for the State—
    The testimony of the witness, Stinson, which was objected to by the defendant, was -relevant and admissible. Testimony had already been introduced tending to show tliat the wounds on the person of deceased were incised wounds. Under this state of facts the testimony ■of the witness Stinson, above referred' to, to which the defendant objected, was properly admitted. — Ezell v. State, 103 Ala. 8; Mitchell v. Skate, 94 Ala. 68.
    The confession of the defendant testified to by the ■officer Patton who arrested the defendant, was shown to be voluntary and the court properly admitted the testimony. — Calloway v. State, 103 Ala. 27; McElroy v. State 75 Ala. 9,13; Jackson v. State, 69 Ala. 249, 252.
    The. statement of the witness Patton that the defendant admitted on the preliminary trial that the knife introduced there was his, was properly admitted. — Ezell v. State, 103 Ala. 8; Mitchell v. State, 94 Ala. 68.
    The portion of the. general charge to which the defendant excepted, was correct. — Walker v. State, 73 Ala. 17.
   DOWDELL, J.

There was evidence tending to show that the wounds made on the deceased, and from which -dea tli resulted, were incised wounds. Stinson, a witness for the Státe, testified that the defendant owned a "barlow knife, but that he had not seen him with it on the day of the killing, nor on the day previous; that he had borrowed the knife from the defendant, and that he saw a knife on the preliminary trial, which was the knife he had seen the defendant with. This evidence was objected to by the defendant, and the. objection was overruled. The evidence was relevant as tending to show that the defendant was provided with the means of inflicting the wounds described, and the court commuted no error in overruling the objection. — Ezell v. State, 103 Ala. 8; Mitchell v. State, 94 Ala. 68.

The confessions of the defendant made to the officer Patton, who arrested him, were shown to have been made voluntarily, and were, therefore, properly admitted.— Calloway v. State, 103 Ala. 27; McElroy v. State, 75 Ala. 9-13, and authorities there cited.

There was no error in admitting the testimony of the witness Patton that the defendant admitted on the preliminary trial that the knife there shown in evidence was' the defendant’s.. — Ezell v. State, supra; Mitchell v. State, supra.

The portion of the oral charge of the court to. the jury, to which the defendant excepted, correctly stated the law. In Hull v. State, 79 Ala. 33, it is said: “It is sufficient, if the substance of the charge be proved, without regard to the precise instrument used. Though the indictment charges a particular weapon, the averment is substantially proved, if it be shown that some other instrument was employed, which occasions a wound of the same kind as the instrument charged, and- the same consequences naturally follow.” — State v. Fox, 1 Dutcher 566; State v. Smith, 32 Me. 369; Rogers v. State, 50 Ala. 102; 1 Bish. on Crim. Proced., § 514; 1 Arch. Cr. P. & Pl. 787.

There being evidence from -which the jury might infer the existence of the ingredients of murder in the first degree, written charges 1, '2, and 3 requested by the defendant were properly, refused. Written charge No. 4 requested by the defendant was properly refused for the reasons stated above as to the correctness, of the portion of the oral charge of the court, which wrns excepted to' by the defendant. Although the jury might not believe' •that the'cutting was done with a knife, still if they be-' lieve it was done by the defendant with am instrument of like kind, this would be sufficient to sustain the charge that it was clone with a lcnife. The charge requested was opposed, to this view, and was, therefore, erroneous.

We find no error in the record, and the judgment of the court will be affirmed.  