[Tidwell v. The State.]

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 subject 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

[Tidwell v. The State.]

absence of any one will involve in guilt.-Whart. Hom. $$ 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. Hom. $ 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.

The 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 doubt. 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.

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; and 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

[Otis v. McMillan & Sons.]

given, may have intervened in the affray in which that blow was given, to aid and assist him who inflicted 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 teinporary 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 was 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.

Otis v. McMillan & Sons.

Action for Rent, by Assignee of Written Lease.

1. Conveyance of leased premises during term.-When lands, subject to a lease for years, are conveyed by the lessor during the term, by absolute deed, mortgage, or deed of trust in the nature of a mortgage, the grantee takes subject to the lease, and the rights of the lessee are unaffected: he is protected in the payment of rent to the lessor until notice

of the conveyance, ing after notice.

[Otis v. McMillan & Sons.]

and the grantee becomes entitled to the rents accru

2. Same; sale under power in mortgage.-When lands are sold under a power contained in a mortgage, or deed of trust in the nature of a mortgage, the sale cuts off and bars the equity of redemption as effectually and completely as a decree of foreclosure in a court of equity, passing to the purchaser the entire estate, both legal and equitable, subject only to the mortgagor's statutory right of redemption; and the lands being subject to a lease, executed by the mortgagor prior to the mortgage, all the rights thereby secured to the mortgagor, as lessor, also pass to and vest in the purchaser.

3. Estoppel as between landlord and tenant.-A tenant, while holding under the lease, is estopped from disputing the title of his landlord; but he may show that his landlord's title has expired, or has been transferred, not reserving the rents, or has passed to another by operation of law; and in like manner, when the landlord has transferred all his title and interest to another, to whom the tenant has attorned, the landlord is estopped from asserting against the tenant any rights under the original lease.

4. Statutory right of redemption; merger of lease in reversion.―The right of redemption secured by statute to a debtor whose lands have been sold under execution, decree in chancery, or power of sale in a mortgage or deed of trust (Code, § 2877), is neither property, nor a right of property, and does not prevent the purchaser at the sale from selling and conveying in fee to a tenant in possession under a lease prior in date to the mortgage; and on such sale and conveyance, the lease is extinguished, the term being merged in the fee by operation of law. (STONE, J., dissenting, held that the purchaser at the sale acquired only a conditional estate, subject to be defeated by the redemption of the premises by the mortgagor, within the time allowed by law; and such redemption being made, that the lease was not extinguished, or merged, by the intermediate conveyance to the lessee.)

5. Acceptance of new lease.—The acceptance of a new lease for years by the tenant, during the term covered by the former lease, is a surrender and extinguishment of the former by operation of law; and this principle applies where, the leased premises having been sold and conveyed by the lessor, reserving the right to re-purchase within a specified time, the lessee accepts a new lease from the purchaser, whose deed contained an express stipulation that, if he should make any lease during the period allowed for the re-purchase, “such lease or agreement shall, notwithstanding the re-purchase, if made, remain in full force and effect, and be valid and effectual against said J. [vendor] and his assigns;" although the new lease contained a provision that, in the event of the re-purchase within the period allowed, "this agreement is to be null and void, and of no effect." (STONE, J., dissenting, held that this stipulation, and the re-purchase by the original lessor during the time allowed him, prevented the acceptance of the new lease from operating as a surrender or extinguishment of the former.)

APPEAL from the Circuit Court of Mobile.

Tried before the Hon. H. T. TOULMIN.

This action was brought by the appellees, suing as partners, against William Otis, and was commenced on the 22d December, 1877. The action was founded on a written lease executed by and between J. F. Jewett, as lessor, and said Otis as lessee; the plaintiffs claiming as the assignees of Jewett, and seeking to recover the rents which, by the terms of the lease, accrued

[Otis v. McMillan & Sons.]

by quarterly installments, between the 1st September, 1876, and the 1st December, 1877. Under the instructions of the court, the plaintiffs had a verdict and judgment, for $1,385. The appeal is sued out by the defendant, who here assigns as error the rulings of the court below on the pleadings, and the charges given and refused. All the material facts are stated in the opinions. The case was decided in December, 1879, but the opinion was afterwards withdrawn, and the case was held under advisement until March 23d, 1880. The papers have only come to the hands of the reporter very recently.

W. BOYLES, for the appellant.-A tenant may show that the title of his landlord is extinguished, or that it has passed from him by operation of law; and if the premises have been sold under execution against the landlord, the tenant may show this in bar of the landlord's action for rent.-Pope v. Harkins, 16 Ala. 324; English v. Key, 39 Ala. 115. Vogel and wife became the owners of the property by the act of Jewett, and succeeded to all of his rights under the lease; and Otis attorned to them, after notice. If he had failed or refused to pay rent to them, they could have evicted him; and his attornment to them was equivalent to an eviction. The lease was terminated by the act of Jewett, and by operation of law; and when Otis afterwards purchased from them, the term and the fee united in him, and the less estate was merged in the greater.-Clift v. White, 15 Barb. 70; Reed v. Latson, 15 Barb. 9; Davis v. Thomas, 6 Excheq. 856; Wilcox v. Davis, 4 Minn. 197; Whyte v. Arthur, 2 Green, N. J. Eq. 521; 1 Jones on Mortgages, 888. The effect of the redemption by Jewett is immaterial, since he afterwards conveyed in fee to Lyles, and the acceptance of the new lease from Lyles by Otis was, by operation of law, a surrender and extinguishment of the former lease, if it had not been already merged.-Paylor on Landlord and Tenant, 338; Dennison v. Wertz, 7 Serg. & R. 372; Leonard v. Burgess, 16 Wisc. 41; Brown v. Parsons, 22 Mich. 24; 4. Wait's Actions and Defenses, pp. 212–13.

JNO. T. TAYLOR, contra.-The doctrine of merger does not apply, because the right of redemption, outstanding in Jewett, intervened between the term and the fee; and a merger only takes place, when the greater and the less estate, legal and equitable, meet unconditionally in the same person, at one and the same time. Otis never had a fee, except coupled with an outstanding equity and legal right in a third person; and he never had any right to the term of ten years, because he had never paid anything for it, and he could not merge and destroy this outstanding right under a lease executed by himself.