
    Lewis v. The State.
    
      Indictment for Murder.
    
    1. Practice in introduction of evidence; what is revisable. — The order of the introduction and examination of witnesses is, at least to a very great extent, a matter of discretion with the presiding judge; and his action in Allowing a witness for the prosecution to be examined as to new matter, after the close of the defendant’s evidence, is not revisable, where it does not affirmatively appear that some substantial right of the defendant was thereby prejudiced.
    2. Self-defense; charge as to. — A charge instructing the jury that the defendant, “if he provoked the difficulty, or willingly entered into the fight, can not set up self-defense,” asserts a correct proposition.
    3. Charge as to defendant’s own testimony. — The defendant in a criminal case having testified as a witness in his own behalf, a charge instructing the jury that his testimony “is to be considered in connection with all the other evidence in the case, and if they are not satisfied that it is true, then they may disregard it,” asserts a correct proposition.
    4. Self-defense; burden of proof, and charge misplacing. — When the plea of self-defense is set up in a case of homicide, the onus of proving it is on the defendant; and a charge which instructs the jury “ that the burden of proof rests on the State, as well as to the right of self-defense as to any other constituent of the offense,” is properly refused.
    From the Circuit Court of Elmore.
    Tried before the Hon. John. B. Tally.
    The defendant in this case, Yiney Lewis, was indicted for the murder of Lizzie Story, “ by cutting her with a knife;” was tried on issue joined on the plea of not guilty, convicted of murder in tbe second degree, and sentenced to tbe penitentiary for the term of fifteen years. On tbe trial, she reserved a bill of ¿xceptions, in wbicb tbe facts and rulings are thus stated: “The State introduced evidence tending to
    show tbat in May, 1888, before tbe finding of tbe indictment, and in said county, tbe defendant killed Lizzie Story, by stabbing her witb a Jinife, without provocation. Pour witnesses testified, tbat one Madison Thomas, a brother of defendant, held tbe arms of tbe deceased behind her while tbe defendant stabbed her; but other witnesses testified tbat Madison was at tbe time in a yard near by, a fence separating him from tbe said parties. Tbe defendant was examined in her own behalf. Other testimony was introduced, tending to show tbat tbe deceased first assaulted defendant, and struck her witb her fist, and drew from her dress a knife opened, before defendant stabbed, or attempted to strike her, and wbicb was done immediately after drawing tbe knife by deceased. After this testimony was introduced by tbe State, and tbe defendant bad closed her testimony, the State introduced one Henry Williams as a witness, and asked him tbe question, if be saw defendant in Tallassee on tbe morning of the day on wbicb deceased was killed, and to state any conversation witb, or statement of defendant in Sistrunk’s store, in which- sbe threatened to kill deceased. Tbe defendant objected to tbe examination of this witness as to such matter, because it was not in rebuttal of any -evidence introduced by her. Tbe court overruled tbe objection, and stated tbat tbe defendant should have tbe right to introduce evidence in reply thereto. Said Williams was then examined, and testified to threats made against tbe deceased by tbe defendant at tbat time and place; to wbicb the defendant excepted. Tbe evidence was conflicting as to who provoked or commenced tbe difficulty, and as to tbe part taken by each in tbe fight. The cóurt»cbarged tbe jury, of Ls own motion, as .follows: ‘If tbe defendant provoked the difficulty, or entered willingly into tbe fight; then she can not set up self-defense in this case’; also as follows: ‘ Tbe law requires you to consider tbe testimony of tbe defendant in connection witb all tbe other evidence in tbe case; but, as to what is true you are tbe judges. If tbe jury are not satisfied tbat her (tbe defendant’s) testimony is true, then they may disregard it.’ To each of these charges tbe defendant excepted, and requested tbe following charge in writing: ‘The burden of proof rests on tbe State, as well as to tbe right of self-defense as to any other constituent of the offense; and if the evidence believed'by the jury fails to convince them beyond all reasonable doubt of the defendant’s guilt, ihey must acquit her.’ The court refused to give this charge, and the defendant excepted.”
    R. M. Williamson, for the appellant.
    Wm. L. Martin, Attorney General, for the State,
    cited McKee v. State, 82 Ala. 32; 1 Brick. Digest, 886, §1174; Wharton v. State, 73 Ala. 367; DeArman v. State, 71 Ala. 351; Cleveland v. State, 86 Ala 1.
   McCLELLAN, J.

The order of the introduction and examination of witnesses is, at least to a very large extent, controlled by the discretion of the presiding judge; and his action in allowing a departure from the usual and regular course of calling witnesses and adducing testimony is not revisable, except, perhaps, where it affirmatively appears that some substantial right of the party complaining has been prejudiced thereby. The exception of the defendant below to the introduction by the State and examination as to original matter of the witness Williams, after the close of testimony for the defense, can not be sustained. — Towns v. Riddle, 2 Ala. 694; Gayle v. Bishop, 14 Ala. 556; Hutchins v. Childress, 4 Stew. & Port. 34; Borland v. Mayo, 8 Ala. 104; Bell v. State, 78 Ala. 309.

A necessity superinduced by the party who acts under its compulsion can- not be relied on by him to excuse or justify his conduct; and applying this principle to the law of homicide, it is the settled doctrine of the courts, that the aggressor in a personal difficulty, or one not reasonably free from fault in entering upon it, can never be heard to acquit himself of liability for its consequences on the ground of self-defense. The charge of the court, asserting this principle, is free from error. — Brown v. State, 83 Ala. 33; Baker v. State, 81 Ala. 38.

The charge, that “the law requires you to consider the testimony of the defendant in connection with all other evidence in the case; but as to what is true, you are the judges. If the jury are not satisfied that her (the defendant’s) testimony is true, then they may disregard it,” is palpably a correct exposition of the law. — McKee v. State, 82 Ala. 32.

The charge requested by the defendant clearly misplaces the burden of proof under the plea of self-defense. The onus of showing the facts which authorize the taking of life to preserve life is upon the defendant, who relies on them, in justification of the killing.' — Cleveland v. State, 86 Ala. 1; Storey v. State, 71 Ala. 329; DeArman v. State, Ib. 351.

The judgment of the Circuit Court is affirmed.  