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cide whether the facts in this case are within the ordinary reason or not.' Charge 2: 'Gentlemen of the jury, you may look to the relative size of the defendant and the deceased, their respective ages and weight and physical condition in drawing your conclusion that the defendant was or not at the time of the fatal difficulty in imminent danger of loss of life, or was exposed to grievous bodily harm.' Charge 3: 'Gentlemen of the jury, I charge you that, if you believe the defendant was free from fault in bringing on the difficulty, and had no reasonable means of escape, and was in imminent danger of his life, or was exposed to great bodily harm, then he had the right to anticipate his assailant and strike the fatal blow.'

"At the request of the defendant the court gave the following charge: 'The court charges the jury that prior communicated threats made by the deceased against the defendant have a tendency to make the defendant take more prompt and decisive measures to protect himself.' After giving the charge, the court qualified it as follows: 'Provided, gentlemen of the jury, you believed that the deceased was making a felonious assault upon the defendant at the time he struck the fatal blow.'"'

Bayles & Hybart, for the appellant.

M. Wilson, attorney general, for the state.

44 ANDERSON, J. The bill of exceptions does not disclose that an objection was made to the court's making defendant go to trial, or an exception to the action of the court: Walker v. State, 117 Ala. 85, 23 South. 670.

The trial court committed no error of which the defendant can complain in permitting the witness to testify that deceased told him he was cut. He did not say defendant cut him; but, had he so stated, it would have been innocuous, as the undisputed evidence showed that defendant cut the deceased.

If the threats testified to by witness Sylvester were prima facie admissible on the direct examination, they should have been excluded upon the motion of the defendant, as the witness showed by his evidence on cross-examination that the threats had no reference to the deceased or any member of his family.

The trial court, in the oral charge, stated "that a blow from the hand or fist never justified the use of a deadly

weapon." The law is that a blow from the hand or fist, under ordinary circumstances, neither justifies 45 nor excuses the use of a deadly weapon: Scales v. State, 96 Ala. 69, 11 South. 121; Davis v. State, 152 Ind. 34, 71 Am. St. Rep. 322, 51 N. E. 928; Strickland v. State, 98 Ga. 84, 25 S. E. 908.

Charge 1, requested by the defendant, asserted a correct abstract proposition of law, and should have been given.

Charge 2, requested by the defendant, was properly refused. It was argumentative and emphasized certain facts: Hussey v. State, 86 Ala. 34, 5 South. 484; Smith v. State, 88 Ala. 73, 7 South. 52; Bancroft v. Otis, 91 Ala. 279, 24 Am. St. Rep. 904, 8 South. 286; Gilmore v. State, 126 Ala. 20, 28 South. 595.

Charge 3, requested by the defendant, was properly refused. If not otherwise bad, it pretermits not entering into the conflict willingly. He may have been free from fault in bringing on the difficulty; yet, if he entered into it willingly, he cannot. invoke the doctrine of self-defense.

Without determining the correctness or not of charge 4, given at the request of the defendant, or sanctioning the action of the court in qualifying the same, the qualification was not a correct statement of the law. The defendant did not have to wait until a felonious assault was made upon him. If the other elements of self-defense existed, and the deceased had made threats against him, which had been communicated to him, he had the right to act upon any overt act or hostile demonstration, which may have led to the honest belief that he was in imminent peril, but which said act or demonstration may not have amounted to a felonious assault.

The judgment of the circuit court is reversed, and the cause remanded

Reversed and remanded.

Haralson, Dowdell, and Denson, JJ., concur.

The Law of Self-defense is discussed in the notes to State v. Gordon, 109 Am. St. Rep. 804-826; State v. Sumner, 74 Am. St. Rep. 717740. As to whether an assault with the fists alone will justify taking the life of the assailant, see the note last cited at page 725, and the case of Davis v. State, 152 Ind. 34, 71 Am. St. Rep. 322.

The Admissibility of Threats in Evidence in prosecutions for homicide is discussed in the notes to State v. Nelson, 89 Am. St. Rep. 691; Campbell v. People, 61 Am. Dec. 53. The admissibility of general threats having no reference to the homicide is considered in the recent case of State v. Feeley, 194 Mo. 300, 112 Am. St. Rep. 511.


[145 Ala. 137, 40 South. 557.]


MUNICIPAL Contracts.-A municipal corporation has incidental power to contract for the construction and operation of a system of waterworks for public and private use, and the making of such a contract is not a delegation of a governmental function, but an exercise by the city of its business or proprietary powers. (p. 23.)


CORPORATIONS-Waterworks Contracts Period of Franchise.-If no limit is fixed by constitution or statute as to the length of time for which a contract made by a city for the construction and operation of a system of waterworks for public and private use shall remain in force, it cannot be said that such contract providing that it shall remain in force for thirty years is unreasonable. (p. 24.)

MUNICIPAL CORPORATIONS-Waterworks ContractDesignation of Streets to be Piped-Injunction.-A contract entered into by a city for the construction of a waterworks system which does not prescribe the order in which the work of constructing such water plant shall be begun, is not a condition precedent to maintaining a bill for a mandatory injunction to require the city to designate the streets in which pipes shall be laid and hydrants located, that the complainants shall have purchased material, located water towers and pumping stations, or otherwise have begun to perform their part of the contract. (pp. 24, 25.)

The following statement is taken from the opinion delivered by Tyson, J., in the case of Weller v. City of Gadsden, 141 Ala. 642, 37 South. 682:

"R. A. Mitchell and associates filed their bill for mandatory injunction to require the proper authorities of the city of Gadsden to point out and designate such streets of the said city of Gadsden as it was desired that water mains and hydrants be laid in. The bill sets up the contract. . . . and ordinance under which relief is asked essentially as follows:

"By section 1 of an ordinance adopted November 11, 1902, the governing board of the city of Gadsden, to obtain for the use of the inhabitants of that city a supply of water for all purposes, granted to R. A. Mitchell, his associates, successors or assigns, 'the right and privilege to construct, maintan and operate waterworks for public and private use of water within said city, for a term of thirty years from the date of the completion of said waterworks,' together with the right to lay pipes, erect hydrants, fountains and other structures and appurtenances, in any and all of the streets, alleys, lanes, parks and other public places of and in said city, as they then existed or might thereafter be laid out or extended, and as

might be requisite for the distribution of water or the operation of said waterworks system.

"By section 2 of the ordinance, it was provided that the condition upon which the foregoing privileges and franchises were granted were made the subject of a contract between the said city and the grantees, which formal contract was thereby made a part of and embodied in the ordinance. After insertng the contract, it was, in conclusion, ordained: "That the city of Gadsden, Alabama, hereby approves, ratifies and confirms the above ordinance and contract in all its terms and provisions,' and it was further provided how the 'ordinance and contract' should be executed, both by the city of Gadsden and the grantees and contractees, and it was duly signed and executed by both parties, in the manner prescribed by the ordinance; R. A. Mitchell 'for himself, his associates, successors or assigns,' at the end of the ordinance, assenting in writing to all the terms of the ordinance contract, 'with all its provisions, restrictions, and requirements.' In the formal contract, embodied in the ordinance, the undertakings of Mitchell and associates are set forth in ten paragraphs.

"Briefly, and as far as now necessary, their obligations may be thus stated: (1) To supply pumping engines; (2) to lay adequate mains; (3) when ordered by the city, to extend mains, and place additional fire hydrants thereon; (4) to furnish a supply of water from a designated source or sources, sufficient for present and future needs of the city and private consumers; (5) to place upon the lines of mains or distributing pipes not less than sixty (60) hydrants, at such points as the city authorities may direct, for public use only, the city to first establish grades of the highways before pipes are laid; (6) to begin construction of the system twelve months before the expiration of the existing contract of the city with the Gadsden Waterworks Company, on or before January 1, 1905, and to complete the same, ready for use, by December 31, 1905; (7) to discharge, when required, certain streams through hydrants and to maintain a certain pressure, which test, if successfully made, will entitle them to an acceptance of the works; (8) to furnish water for domestic and manufacturing purposes, at prices not exceeding a fixed schedule, and to furnish certain quantities of water for sprinkling, for drinking fountains, and for city buildings, free of charge; (9) to deposit a certified check, for one thousand dollars, to be forfeited if the work of construction is not com

menced and completed within the stipulated time, which check, the bill alleges, was deposited by the complainants and collected by the city.

"Thereupon, in consideration of the agreements and obligations of the other parties (having already in section 1 of the ordinance made a simple grant of the right to construct and operate the waterworks for thirty years, and to use the streets, etc., for pipes, etc.) the city of Gadsden stipulated, in four paragraphs of the formal contract, embodied in the ordinance, as follows: (1) To grant the exclusive right to construct and operate waterworks in said city for thirty years from date of acceptance, with a proviso that the franchise and contract may be revoked at the option of the mayor and aldermen, whenever the works failed to furnish a proper and adequate supply of water and such condition continued for three months; (2) to grant the right to enter upon the streets, alleys, etc., to lay pipes, erect hydrants, and to do other necessary work of construction; (3) to pay an annual rental, for thirty years, of forty-two dollars for each of the first sixty hydrants set and put in use, and forty dollars for each hydrant on the extension of mains which the city may order; (4) to grant the right to make needful rules and regulations in regard to the use and waste of water, and to collect from consumers in advance a tariff of rates, not exceeding those specified. Delays in the beginning or completion of the work, due to certain named causes, are to operate as an extension equal to the time so lost."

H. T. Davis and Bilbro, Inzer & Stephens, for the appellant.

Burnett, Hood & Murphree and Dorth, Martin & Allen, for the appellee.

156 SIMPSON, J. This is an appeal from a decree overruling a motion to dismiss the bill for want of equity and demurrers to the same. In 1902 the appellant (defendant below) passed the ordinance and entered into the contract shown in the record, whereby certain rights were granted to appellee (complainant) and said complainant undertook and promised to build a system of waterworks for defendant, with stipulations as shown, and agreements on the part of defendant to pay for certain service to be given to the city. On June 1, 1903, defendant passed an ordinance by which it undertook to

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