McCLELLAN, J.
The evidence was taken ore terns in this case. There were many witnesses. Much difficulty and delay in securing their attendance at Montgomery were apprehended. To facilitate the hearing of the case and to subserve the convenience and necessities of the witnesses, the judges of this court, at the request and in accordame with the agreement of the respondent *33and the State consented to take the evidence and hear the arguments of counsel*in the cause at Huntsville, near the scene of the acts and omissions laid against the respondent in the information. And the evidence was there taken, and the arguments were there heard. This, we were and are of opinion, we might well do at the request and in, accordance with the agreement referred to, in view of the control which the statute gives respondents in such cases over the manner of taking testimony. But we were not, unmindful of section 3, article IV of the constitution, which is injthis language : “The Supreme Court shall be held at the seat of government, but if that shall become dangerous from any cause, it may adjourn to a different place and we were careful, while sitting at Huntsville as individual members of the court and not as the court itself, tó avoid the attempted exercise of all judicial power. Hence it is that we made no rulings as to the admissibility of testimony except of a tentative and advisory nature, and hence it is also that much incompetent testimony was received subject to objections noted at the time, and is now to be striken out and excluded, either expressly or by tacitly disregarding it in reaching the conclusions we shall announce. This course, under the circumstances, the triers of the facts and the judges of the competency of proposed testimony being the same, and under a necessity for the most part to know what the offered testimony is befóte passing upon its admissibility, whether the ruling is to be presently or subsequently made, involved no prejudice to either party; and we believe facilitated the hearing in this instance.
Briefly stated, the information in this .ease contains two charges against John B. Tally as Judge of the Ninth Judicial Circuit. The first is willful neglect of duty while in office, in that, knowing the intent of Robert, John, James and Walter Skelton to take the life of R. C. Ross, and having the.opportunity to intervene in his official capacity to prevent the execution of that intent, he willfully failed and neglected to do so. .The second count charges complicity on the part of Tally in the murder of Ross, by the hands of said Skeltons. Tally was a brother-in-law to all of the Skeltons named except John, having married their sister who was a cousin to John. The *34grievance they had against Ross lay in the fact that the latter had seduced or been Criminally intimate with a sister of three of them and of Mrs. Tally. This abstract fact was, in our opinion, competent evidence in this case against Tally as tending to connect him with the motive which actuated the Skeltons to the killing of Ross ; and the fact appears in this case by evidence to which no objection was interposed. Much evidence on this subject, including several letters written by Ross to Miss Skelton, was offered by the respondent, objected to by the State, and received subject to the objection because of the circumstances, to which we have adverted, under which the evidence was taken. All this must now yield to the objection noted at the time, and be excluded from the case. It was proved that both the Skeltons and Tally had full knowledge of the liaison between Ross and Miss Skelton — had had possession of and read all the implicatory letters from him to her — long before the killing of Ross. Had they, immediately upon the receipt of these letters and upon coming, in this or other way, to a knowledge of Ross’s misconduct toward her, been moved by the tumult of passion, which the law holds such intelligence sufficient to provoke and engender, to take the life of Ross, and had taken his life while under the actual dominion of this overmastering passion before cooling time had elapsed, all this evidence would have been competent as negativing the premeditation and malice which are essential elements of murder, and thereby reducing the grade of their offense to manslaughter. But the amplest cooling time had elapsed. If their passion continued, it was without justification of law. And whether as a matter of fact life was taken in a passion so continuing, or not, the offense of the Skeltons, and of Tally, if he participated in the homicide, was and could be in nowise and to no extent or degree justified, mitigated or extenuated by the fact of Ross’s relations with their sister; and they are each and all guilty or not of murder as the other and only evidence in the case, wholly apart from and exclusive of the relations of Ross and Miss Skelton, may or may not satisfy beyond a reasonable doubt minds charged with the investigation that they killed, or participated in the killing of, Ross under circumstances that would have imported murder had the perpetrators been wholly without griev*35anee, real or fancied, against Mm. All tMs testimony is, therefore, entirely irrelevant and immaterial to any issue that can possibly exist in this case, and it is excluded. — Hooks v. State, 99 Ala. 166; McNeill v. State, 15 So. Rep. 352, infra.
It has been many times decided by this court, and may now be considered the settled rule with us, though most of the adjudged cases in other jurisdictions hold the contrary, that a witness cannot depose to his uncommunicated intention. And upon this rule the testimony of the respondent as to the purpose and intention which actuated him in the sending of a certain telegram, and of the witness Huddleston that, upon receiving certain telegrams from E. H. Boss and the respondent on the morning of February 4, 1894, he “went down to the hotel to see if Mr. Boss was there — to see if he had come there ; went down to advise with him and to see what the trouble was, and also to deliver the message,” must now be stricken out.— Wheless v. Rhodes, 70 Ala. 419; Whizenant v. State, 71 Ala. 383, Stewart v. State, 78 Ala. 436, Fonville v. State, 91 Ala. 39; Baldwin v. Walker, Ib. 428; E. T. V. & G. R. R. Co. v Davis, Ib. 615; Lewis v. State, 96 Ala. 6.
The conversation between the respondent and Mr. J. E. Brown after and on the day of the homicide was in the nature of privileged communications between attorney and client, for though that relation was never established between these parties, what was then said by the respondent was with a view to the retainer of Mr. Brown, and is within the protection of the rule. That conversation and the circumstances under which it was had must now be excluded. — Hawes v. State, 88 Ala. 37, 68. Without discussing at px’esent other objections to testixnony which may be ruled upon in the course of this opinion, we will proceed to state and consider the evidence with reference to the guilt or innocence of the respondent of the charges brought against him by the information, premising that we recognize the rule of conviction beyond a reasonable doubt as applicable to this case, and that our minds must be convinced to that degree of the guilt of the respondent before we can adjudge him guilty as charged.
Among the facts which the evidence establishes without conflict, direct or inferential, in this case, are the *36following: About January 6, 1894, Ross left-Ms home in Scottsboro surreptitiously under and because of an apprehension that his life was in imminent peril at the hands of the Skeltons. He remained away from Scottsboro under this apprehension until Tuesday night, January 30th, when he returned on account of the illness of his wife. Prom that time till Sunday, February 4th, he remained in Scottsboro, secluded in his house. About 6 o’clock on that Sunday morning, just as the train passed Scottsboro going to Stevenson and beyond there to Chattanooga, Ross left Scottsboro in a hack for Stevenson , eighteen miles distant, intending to catch a train there on another road and go on to Chattanooga. With him were his brother-in-l^w, Bloodwpod, a negro man, John Calloway, and the driver, one Hammons. All of the party were armed; Ross had a gun and a pistol, Bloodwood had a gun, and Calloway and Hammons each had a pistol. They arrived in Stevenson about 10:45 that morning, and driving to a point in a public road or street midway between an hotel and the passenger station of the two railroads that connect, or, rather, unite there, and thirty or forty yards from each, all the party alighted from the vehicle, except the driver, and took out their arms and baggage, the latter consisting of three valises. A person, William Tally, passing at the time from the hotel to the station, walked around the hack, which had stopped immediately in front of him; and met, shook hands and passed the usual salutations with Ross, who had gotten out on the side next the station, and then turned away and started on toward the station. Just at this juncture a shot was fired at Bloodwood, from behind the depot platform. This was followed by another from the same place, and then by other shots from two guns ■ behind the platform and from a pile of telegraph poles a little way down the road in the direction from which the hack had come. Some one or more of these succeeding shots took effect in Ross’s legs, and he fell. Bloodwood was also wounded and ran away. The team ran away with Plammons. Calloway does not appear to have been hit, but in some way he fell with and under Ross. They both arose almost immediately. The negro, Calloway, ran away. Ross managed to get to the side of a small oil house, a *37short distance beyond where the hack had stopped, and took a position affording some shelter from persons behind the platform and telegraph poles. While standing there with his gun in his hand and looking in the direction of the telegraph poles, a man came to the corner of the house behind him and shot him with a Winchester rifle through the head from back to front. He fell in the throes of death and died, then another man came up from behind the platform and, approaching closely, also shot him through the head with a Winchester rifle. The man who fired the first and two or three other shots from behind the platform was Robert Skelton. The man who fired the other shots from that position was James Skelton. The man who fired from the telegraph poles was Walter Skelton. John Skelton it was who reached the corner of the oil'house behind Ross, shot him in the back of the head and killed him. And it was Robert who came up after he was dead, and again shot him in the head. Some of the Skeltons were seen about the station in Scottsboro when the east bound train passed that morning just at the time Ross started overland to Stevenson. Soon after that they heard of Ross’s flight, and, as soon as they could get together, arm and mount themselves, they started in pursuit on horseback. They were fearful that Ross would turn off the Stevenson road and go across the Tennessee river as he had done on the occasion of his previous flight, and hence they were afraid to take any short cuts by resorting to which they could have, as Ross continued in the Stevenson road, overtaken him much sooner than they did ; but in their uncertainty as to his destination they thought it best to follow the tracks of his vehicle. Doing so they came in sight, and within a little distance, of the hack as it was crossing a creek a mile from Stevepson. The hack was a close one and its occupants did not see them. A railroad crosses the creek at this point along side of the public road. They could have attacked the Ross party at this point, and Walter Skelton testifies that he then said to his companions: “Let’s surround them and demand of him where Annie is,” but that they said: “No, that would probably bring on a fight, and some one of us get killed. ’ ’ Instead of this, Robert and James dismoúnted, left their horses and ran along the railway track to Stevenson where they arrived and took positions behind the platform *38almost immediately after the Ross party had arrived and stopped. Walter and John Skelton kept in the road behind the hack and fifty or sixty yards distant from it. They too were afoot at this time. Walter stopped at the pile of telegraph poles which he seems to have reached about the time the hack stopped and before any one alighted from it. John, in some way, got beyond the hack and finally to the oil house without, so far as the evidence discloses, being seen by anybody until just before he shot and killed Ross. After the killing of Ross, Robert Skelton sent a telegram to the respondent at Scottsboro informing him that Ross was dead and that none of the Skeltons were hurt; and they all surrendered themselves to Huddleston, who was mayor of Stevenson, and were taken back to Scottsboro and confined in jail. Subsequently bail was allowed them, and was given by Robert and James. John and Walter were unable to give bail, and the former escaped, and is still at large. After this, Walter also gave bail. All these facts are undisputed. The evidence offered in justification or mitigation of the homicide, except the facts and circumstances of Ross’s relations with Miss Annie Skelton, which we have excluded, is that of Robert Skelton as follows : “About the time that I got to the depot, between the depot and the hotel, Mr. Ross was at the buggy speaking with Bill Tally. I walked up and saw that. In a little while, I don’t know how long, Mr. Bloodwood drew his gun up at me. I dodged down, and then fired at Bloodwood;” and of Walter Skelton: “I was, I suppose, fifty or sixty yards behind the hack [when it stopped], and I was watching to see who got out. I saw Mr. Ross get out, talking to some one. Then I saw Mr. Bloodwood get oat, and in a few minutes I saw him raise his gun across the hack, then take it down, and about the same instant I heard a gun pop.” The gun which Walter heard “pop” was that of Robert Skelton. Walter and James then joined in and Robert continued the fusilade. That Bloodwood did not shoot there is no reasonable doubt. That Ross or any other of his party fired a shot is not pretended. That Bloodwood snapped his gun in an effort to shoot there is some evidence, enough we will conclude to engender a reasonable doubt as to whether he did or not. But the conclusion that he attempted to shoot at Robert Skelton will not afford any *39justification or excuse to the Skeltons or the respondent. They were in no danger from Bl'oodwood’s gun. If they were in danger, a safe avenue of retreat was open to each of them. Had there been danger and had the opportunity of retreat been wanting, they yet could not invoke the doctrine of self-defense, because their danger resulted from their own wrongful and unlawful aggression. They were there to kill. It was Ross and Bloodwood and not they who were on the defensive. This conclusion can not be escaped even from their own standpoint. They say they pursued Ross to prevent his going to their sister and continuing criminal relations with her. Hpw were they to do this ; how could they do it but in the effective way they did do it, by stopping Ross at once and forever in his tracks. That they contemplated this means, conceding their purpose was to prevent the coming together of Ross and Miss Skelton, is beyond all question. It is shown by their conversation at the creek, when they said Ross would fight and some of them would be killed if they approached him with reference to Miss Skelton, and they then desisted only because the place and surroundings were not opportune. It is shown by the disposition they made of themselves around but concealed from Ross at Stevenson and the instantaneous fire they opened on him as soon as they were in their places of ambush, when, had their purposes been less deadly, had any sort of parley with Ross been desired, either for the purpose of diverting him from their sister or of ascertaing from him her whereabouts, pacific means to that end were at hand in the person of William Tally, who had just spoken to Ross and was then coming directly towards the place of concealment of two of them, one of whom began the onslaught, and in the person of several other men then in and about the depot. Their purpose was to kill; its wickedness was unrelieved by aught of legal justification or excuse. They did kill; and their act was without any justification, mitigation or extenuation which the law knows or courts can allow to be looked to. It was murder.
What connection had the respondent with that murder ? Was he, knowing the deadly intent of the Skeltons and their pursuit bent upon its execution, willfully neglectful of his duty as a magistrate in not exercising the power the law had clothed him with to stay theiy *40harLds? Or did lie himself participate in the deed by-commanding, directing, counselling or encouraging the Skeltons to its execution, or by aiding and abetting them in its commission? The evidence for the prosecution on these issues will be briefly stated. As has been seen, Judge Tally was the brothér-in-law of Robert, James and Walter Skelton, and of Miss Annie Skelton, the wronged girl. It may be supposed, therefore, that he shared with the Skeltons, in some degree at least, the shame and mortification which had come upon them through Ross ; and that the grievance against Ross was common to them all. It was shown that he knew all the facts known to the Skeltons and come to his knowledge of them soon after they did. They all lived in the same town with the intimacy usually incident to their relations. James Skelton lived with Judge Tally. On Friday before-the Sunday of the homicide, Judge Tally returned to Scottsboro from Ft. Payne, where he had been holding court, by way of Chattanooga, Tennessee, and over the Memphis and Charleston railroad. On the train was Mr. Gregory, a lawyer of Scottsboro, who engaged Judge Tally in conversation. The latter spoke of some interesting murder cases that he had been trying at Ft. Payne, and in this connection Gregory remarked to him that he thought they would have one or more killings in Scottsboro in a very short time. “The Judge [to quote the witness] asked me why, and I told him that Ross had come back and that the Skelton boys were on the war path, or some such thing, I don’t remember just what it was. The Judge said he guessed not, that he supposed Ross would leave, or would not stay there, or something of that kind; and I told him I supposed so.” On Saturday afternoon Judge Tally was in consultation with Robert Skelton, the eldest of the brothers, for something like a half hour in the latter’s office. It is admitted by Judge Tally that this conversation had relation to Ross and Miss Skelton and the scandal connected with them. Tally staid at home thg,t night. James Skelton also slept there. The next morning Tally’s fifteen year old son went to a livery stable and got a horse, the hire of which was charged to, and subsequently paid by, Judge Tally. This horse was gotten for the purpose of being ridden and was ridden by Walter Skelton in pursuit of Ross. One witness testifies *41that quite early on that Sunday morning before the Skeltons had assembled to go in pursuit of Ross, he saw a man whom he took to be Judge Tally passing a street some distance from Judge Tally’s house, going in the direction of John Skelton’s, but he was by no means sure that the man he saw was" Judge Tally. J. D. Snodgrass, a witness for the State, testified that he saw three of the Skeltons, Robert, John and James, leaving Scottsboro that Sunday morning. When he first saw them, John and James were going along a side street upon which Judge Tally’s barn and barn lot were situated. That the two last named had gotten beyond Tally’s premises and were about turning out of this street, which ran north and south, into a street running east and west and passed in front of Judge Tally’s residence. This residence was the second from the corner at the intersection of these streets. At this time Robert Skelton was on horseback near Tally’s barn lot fence talking with Tally. He remained there only a very short time — the witness said probably a minute — after Snodgrass saw them. Tally was either inside his lot or in the street near his lot and on foot. At the end of this short time Robert rode on following John and James, turned east on the other street mentioned and passed by Snodgrass’s house, which fronted on that street, going in the direction of Stevenson. He then observed that each of'them had a gun. Another witness before this saw Walter Skelton following the Stevenson road on foot. This witness coming on down this street in front of Judge Tally’s house., saw Tally standing at his front gate looking in the direction Walter Skelton was proceeding. Tally turned before he reached him and went into the house. Young Tally carried the horse which he had gotten from the livery stable to Walter on the road. Another witness passed down this street after they had all gone towards Stevenson, and he also saw Tally at his gate looking in that direction. Tally again turned and went into his house before this witness reached him. It was also in evidence that James Skelton left Tally’s house that morning before breakfast, went down town, armed and mounted himself, came back to Tally’s, hitched his horse in front of the house, set his gun against the front gate, went into the dining room to get something to eat before starting, then went out, remounted, and joined *42Robert and John at the corner where these three were seen by Snodgrass. The flight of Ross and the pursuit of the Skeltons at once became generally known in the town of Scottsboro, and was well nigh the sole topic of conversation that Sunday morning. Everybody knew it. Everybody talked only about it. Everybody was impressed with the probability of a terrible tragedy to be enacted on the road to Stevenson, or at the latter point. The respondent was soon abroad. He went to the depot where the telegraph office was. He remained about there most of that morning. About nine o’clock that morning Dr. Rorex saw him there, and this, in the language of the witness, passed between them : “I said to Judge Tally that I thought we had better send a hack and a physician to their assistance up the road [referring to the Ross and Skelton parties then on the road to Stevenson] ; that these parties might get hurt and they might need assistance. Judge Tally replied that his folks or friends could take care of themselves. I also said to him that I reckoned we ought to send a telegram to Stevenson and have all of them arrested, to which he made no reply. * * He said that he was waiting to see if anybody sent a telegram — or words to that effect — waiting or watching to see if anybody sent a telegram. ” And he did wait and watch. He was seen there by Judge Bridges just before the passenger train going west at 10 :17 passed. He was there after it passed. E. H. Ross, a kinsman of the Ross who had fled and was being pursued, meeting the telegragh operator, Whitner, at the passenger station walked with him down to the freight depot where the telegraph office was. Judge Tally followed them. They went into the telegraph office and so did he. Ross was sitting at a table writing a message. It was addressed to R. C. Ross, Stevenson, Alabama. Its contents were : “Four men on horse back with guns following. .Look out.” Ross handed it to the operator to be sent. Tally either saw this message or in some way very accurately divined its contents. He called for paper and immediately wrote a message himself. Judge Bridges was still in the office. At this juncture Tally spoke to him, took him into a corner of the room and, calling him by his given name, said; “What do you reckon that fellow [the *43operator] would think if I told him I should put him out of that office before he should send that message?” referring to the message quoted above which E. H. Boss had just given the operator. Judge Bridges replied: “ Judge, I wouldn’t do that. That might cause you very-serious trouble, and besides that might causq the young man to lose his position with the company he is working for.” Judge Tally then remarked : ‘ T don’t want him to send the message he has, and I am going to send this one.” He then showed Judge Bridges a message addressed to William Huddleston at Stevenson, containing these words: “Do not let the party warned get away.” This message was signed by Tally. Huddles-ton was the operator at Stevenson and a friend of Tally. The respondent then handed this telegram to the operator, remarked to him “this message has something to do with that one you just received,” said he wanted it sent, and paid for it. He then started toward the door, but turned to the operator and said: “Just add to that message, £say nothing.’ ” Tally then left the office. This message was sent just after that of E. H. Ross to R. C. Ross. The original of it was placed on a file in the office at Scottsboro. Two days after a search was made for it and it could not be found, and has never been found. The one man in the world most interested in its destruction, the respondent in this case, in the meantime had had an opportunity to abstract it, he having had access to this file and gone through the messages on it for the purpose, he said then and says now, of finding the address of a person to whom he had sent a message some days before. And on the preliminary examination of the Skeltons before the probate judge of Jackson county ,for the murder of Ross, Judge Tally was called and examined as a witness for them, and before a copy of this message was produced by the operator, and hence at a time when Judge Tally was not aware that a copy was in existence, this question was put to him : ££ You didn’t send any dispatches that morning to Stevenson?” And his answer was : ££Yes, sir. I sent one, but not about this matter. It was to a friend, about another matter, nothing concerning this case. ’ ’ And this friend was Mr. Huddleston. He further testified on that trial that he did not know Ed. Ross, did not see him going to the telegraph office that morning, and did not know whether Ed. Ross was in the telegraph office while he was on that *44occasion or not. These telegrams of Ed. Ross and Tally were sent about 10 :25 A. M. Tally then, his watch to prevent the sending or delivery of a telegram to R. C. Ross being over, went home. Soon after eleven o’clock the message before refei-red to came from Stevenson to Scottsboro,«addressed to Judge Tally, and signed by Robert Skelton. It ran : “Ross dead, none of us hurt.” This was taken to Judge Tally’s house and there delivered to him, and he thereupon went to see Mr. Brown, and had the conversation which we have excluded.
The foregoing is substantially the case made by the evidence adduced by the State against the respondent, leaving out of view for the moment the evidence touching the effect which his message to Huddleston had upon occurrences at Stevenson.
Next we undertake a summary of the evidence for the defense. Judge Tally himself, and Robert, James and Walter Skelton were among the witnesses examined. The respondent admitted having a conversation on the train with Mr. Gregory, but he did not recall that Gregory said anything about the Skeltons being on the war path. He says he knew of the relations between Ross and Miss Skelton soon after the Skeltons were informed of them, and read the letters from him to her soon after they came to their possession. That he and Robert Skelton, at the time the latter showed him the letters, on January 6, 1894, held consultation as to what was best to be done in the matter. This is his account of -what occurred and was said at that time in Robert Skelton’s office : “T asked Bob Skelton if he had such communications as it was reported he had, letters said to have been written by Mr. Ross to Annie. I asked him then if he would let me see the letters. He said he would ; and got them and showed them to me, and I read them there in his office. He and his brother David Skelton and myself were the only persons present. During the time I was reading the letters we were speaking about the contents and discussing them, and he told me after I had read the letters — possibly during the time I was reading them — he gave me his ideas as to managing the trouble. He told me about his plans to get Annie home and to let Mr. Ross leave and make the best of it — let it die out and make the best of it. I told him that was decidedly the best thing to do. It *45was best for Mm and would possibly save the publication generally of the scandal, and might possibly save my mother’s life. Annie’s mother was paralyzed and helpless, and I suggested that exposure might possibly cost her her mother’s life. Dave Skelton was sitting by and observing our conversation, and would occasionally have something to say; and he spoke of doing violence — spoke of killing him. I simply turned to him and said: ‘Dave, that won’t do. This is the best management.’ I desire to say just here that this is the only time that any member of the Skelton family ever said, anything in my hearing about killing Ross. Not long after that, he left and I heard no further conversation about any violence.” The respondent gives the following account of the conference he had with Robert • Skelton on Saturday afternoon preceding the homicide : “I think I was on the street and Bob called me into his office, * * * and we engaged in conversation. I think that the first thing Bob mentioned to me was that he was thinking as to how he should find out where Annie was.. He said he had been thinking about trying to get some one to go to Mr. Ross, and induce him or ask him to tell us where Annie was. I suggested to him the propriety of interviewing Mr. Brown about that, and gave him reasons why I suggested Mr. Brown.” These reasons as given at the time by the witness he then repeats ; and goes on to mention one or two other persons whose availability in getting this information was discussed, and says that after this he left Bob’s office having been there'he supposes fifteen or twenty minutes. In all this Judge Tally is corroborated by the evidence of Robert Skelton, and, in respecf of their determination to do no violence to Ross, but to get the girl home and allow him to leave Scottsboro, he is further corroborated by the declaration proved by Mr. Gregory in substance that no violence would be done to Ross as he would leave Scottsboro. He denies having passed up the street when the witness Miller says .he thought he saw him at an early hour Sunday morning, and no importance can be attached to the evidence of that witness, because, in the first place, his glance at the man was casual and hasty and he was himself not at all certain that it was Judge Tally he saw. In the next place, even on the theory of the prosecution, there was no reasonable occasion for Judge Tally’s being at that *46place at that time, and, finally, the fact is denied on oath by the respondent. So that testimony may stand out of the case. • In respect of the horse which Judge Tally’s son procured at the livery stable, which was charged to and paid for by the respondent, and which Walter Skelton rode in pursuit of Ross, the testimony is that Mrs. Tally at the instance of Walter ^Skelton ordered this horse and sent her son for it, that shé was in the habit of doing this, that it was charged to Judge Tally as was the custom, and that he, conceiving himself under a moral and legal obligation to do so because the. horse had been supplied to Mrs. Tally, paid the bill, and this in the usual course, after the point now made on those facts had been suggested to him. The respondent admits on the stand that he saw and had a few words with Robert Skelton when the Skeltons were leaving Scottsboro Sunday morning as testified to by Mr. Snodgrass, and this is his account of that interview : "When I first got up, I went down stairs and stepped out to the front gate just a minute. The only person I saw was Bob Skelton riding up the street towards the railroad, [a street running north and south and not in the direction of Stevenson]. Bob was crossing the street going northwest, [the direction in which John Skelton lived]. I walked back through the hall of my house and went down into the garden to the closet, and was there some time, I don’t remember how long, some little time however. After I came out of the closet and while I was in the garden I saw Bob and John Skelton riding away going east on the street parallel with the railroad, [and which ran back of Judge Tally’s residence]. I staid there and observed them and saw them after they had passed the barn of Mr. Harris on the corner. I saw them coming on the street south passing my barn — along the street that runs in front of my barn. When I saw them going in that direction I walked through my barn lot to the fence and saw them at the corner, [the intersection of this south and north street passing Tally’s barn with the east and west street upon which his residence fronts]. About that time Jim Skelton joined them. I didn’t notice where he came from. Then I called to Bob Skelton. He turned and rode back from where I saw them at the corner, * * * and I crossed the fence and met him near the corner of my *47barn lot. He rode up within six or eight or ten feet, and I said to him : ‘Bob, wher,e are you going?’ He said to me : ‘Going up the road.’ I asked him again : ‘Where are you going?’ and he answered: ‘Up the road, and I am in a hurry.’ He turned and rode off, went back the way he came when I called to him.” Robert Skelton’s testimony agrees with Judge Tally’s fully as to this interview, only he added that he said further to Tally that he was in a hurry and did not want to talk. And they are both fully corroborated as to the circumstances under which this interview was had, its brevity and how it was brought about, by Mr. Shelley, an wholly disinterested witness, who saw John and Robert Skelton as they rode along the east and west street back of Judge Tally’s premises — they passed the witness there — saw them turn south on the street in front of Judge Tally’s barn,and proceed along that street beyond the point of the interview between Tally and Robert Skelton, then saw the latter riding back to where Tally was, sit there on his horse while the witness could have counted fifteen or twenty, then turn, rejoin the others and ■ ride out east. And there is nothing in this account of this interview which materially conflicts with that given by J. D. Snodgrass. James Skelton, as has been said, lived at Judge Tally’s. He slept there the night before the homicide and went thence, as we have seen, in pursuit of Ross. Judge swears he did not see him that morning except when he joined Robert and John at the corner about the time of the conversation between Robert and himself. It is shown by the evidence of Mr. Proctor, who slept with James the night before, that the latter arose and left the room quite early that morning. It was also shown that he was down town at an early hour. Judge Tally must have arisen after James went down town. The testimony and. all the circumstances concur in showing that when J ames came back to the house, mounted and armed, and went in to get “a piece of meat and bread,” as he expressed it, leaving his gun and horse at or near the front gate, Judge Tally was either in his garden back of his house, or more probably in his barn yard, which was back of an adjoining house. From neither of these positions could he see the horse or gun at the front, or James in the house. Judge Tally also testifies that he did not see *48Walter Skelton at all that morning, or know of his son’s going for a horse for him until the Skelton party had left Scottsboro. This is somewhat strange in view of the facts that Walter Skelton came to his house that morning, talked with Mrs. Tally, and induced her to procure a horse for him to ride in pursuit of Ross, and that young Tally was sent from the house to the livery stable for the horse. But it reasonably appears from the evidence that all this happened before Judge Tally got up. It is shown that Mrs. Tally’s cook was sick and that she had tó be up early to prepare breakfast, and did get up some time before Judge Tally. And the other testimony and the surrounding circumstances concur in showing that all that occurred at Judge Tally’s house with reference to this horse occurred in the interval between the times Judge and Mrs. Tally arose.
The respondent further testifies that he did not see his wife after she arose that morning until he returned to the house from the barn lot where he had the interview with Robert Skelton; that he returned thence to his house, saw his wife and she then told him of the flight of Ross, which had been communicated to her by Walter Skelton, and of the pursuit of the Skeltons; and that he did not know and had received no information before this that Ross had gone, and that the Skeltons were pursuing him. At this juncture,.it is to be borne in mind, all the Skeltons had left Scottsboro. And this, with proof of the respondent's good character, is the case of the defense so far as the first count of the information is concerned. On the evidence for the State which we here set out, taken in connection with this evidence for the respondent, can it be said that Judge Tally, when he was in the presence of Robert, and in sight of John and James Skelton that morning, knew of their intention to take the life of Ross, and that they were setting out to presently execute that intention as is charged in 'the several specifications under the first count? We think not. There is no affirmative evidence; such as declarations and the like on their part might have afforded, that they themselves ever entertained the purpose to take life prior to that morning except in the event Ross failed and refused to leave Scottsboro. And tiiey might well have entertained such purpose without Tally’s knowl*49edge of it. It might well have been that, intending to kill Ross, the Skeltons would have concealed their design from Tally on account of his official position and notwithstanding his family relations with them. Again, there is no positive evidence, if they so intended prior to the day of the homicide, that Tally was ever informed or knew of their intention. True it may be said that he knew Ross had to leave there, and failing this the Skeltons would, or intended to, kill him; but only knowing this, the fact that Ross had gone, which fact according to the State’s theory he must have known when the Skeltons left Scottsboro, it would have been but natural for him to have concluded, that as the condition upon which Ross was to live had been met, the conditional purpose to take his life was abandoned. True it is also that he had in some degree the same motive to destroy Ross that moved the Skeltons to his destruction in the sense that he, too, by reason of his marital relations, was a victim of the wrong that Ross had wrought upon them all; but this motive might well have impelled the Skeltons to the extreme ■ to which they went in purpose and deed, while he was restrained by that respect for law which his profession engenders, and by the environment of his high judicial position, from yielding in.intent or action to the deadly impulse the wrong was conducive to. There is,, we repeat, no affirmative evidence that Judge Tally knew, until after the Skeltons had gone, that they intended to take'the life of Ross. There were circumstances proved which unexplained might have justified — indeed would have justified — the inference that he did. But explanations have been made which are either affirmatively satisfactory, or cast such reasonable doubt on the conclusions to which without the explanations the circumstances would have led us, that we do not feel justified in adopting the conclusions. For instance, the hiring of the horse which Walter rode : As presented by the State in all its baldness that fact was most incriminating. But when taken in connection with the facts that the horse was to serve an occasion which was born of the flight of Ross while Tally slept, and was subserved by the procurement of the horse before he arose, that it was charged to him because ordered by his wife and paid for by him, after the circumstances *50of the hiring and use of the animal had been used in the public mind to connect him with the tragedy, because by the course of previous dealing between him and the livery-man in respect of orders by his wife he was under both a moral and a legal obligation to pay, its probative force against him is utterly destroyed. The presence that morning at his house of Walter Skelton is a circumstance of suspicion and would be of incrimination, but for the fact, which is shown by other evidence than Tally’s, and against which nothing has been offered affording a contrary inference even, that Walter had come and gone before Tally got out of bed ill an upstairs room. Again, the naked fact that James came there after Tally had arisen, armed and mounted has of course a natural tendency to show that Tally knew the purpose of such unwonted and warlike preparations on that day when to ride about the country with guns is such an unusual thing. But according to the testimony, not only of Tally and Robert Skelton, but also of Mr. Shelley, a witness for the defense, and of Mr. Snodgrass, a' witness for the State, the respondent was at that time in his barn lot, or next it in the side street, from which p.oint he could see neither Walter Skelton in the house, nor his gun standing against the front gate, nor his horse hitched in the street in front of the house and gate. The presence of Tally with Robert Skelton in the street near the former’s barn as the Skeltons were starting on their chase of Ross, standing alone and unqualified, might prove much against him. But the evidence of himself and Robert Skelton, taken with that of Mr. Shelley, a disinterested witness, satisfies us that that meeting was momentary and wholly casual. Skelton had passed Tally and was proceeding on his journey when Tally hailed him and had him come back. Clearly he had not come that way to see Tally. ■ It is not pretended that they had met before on that morning, or had any communication after Ross’s flight. Tally’s being there is reasonably accounted for without connecting his presence in any way' with this Ross matter. Skelton’s passing there was reasonable without any reference to Tally ; it was his route to his destination. They were together about long enough for the words they give to have passed between them. They *51were not together long enough, we should say, for such conversation as would naturally have passed had they been discussing the flight and pursuit of Ross, what the Skeltons intended to do, what Tally should do meantime at Scottsboro, and the like. The State’s witness, Mr. Snodgrass, saw them there, and his evidence does not materially conflict with that of She] ley as to the length of time they were together. We have already stated the conversation they had as testified to by Tally and Skelton. Though they are to the last degree interested witnesses, there is nothing before us which would justify our reaching the conclusion with the necessary conviction of mind that aught was said other than the words they have deposed to. Moreover, it does not appear, but the contrary does appear upon all the evidence we have, much of which is not tainted by interest, that Tally had any information of Ross’s flight when he was talking with Robert Skelton. It is clearly shown that James Skelton did not know it, indeed it had not transpired, when he left the house. It came first to the knowledge of Walter, and it may well be supposed that he and James and all of them made their preparations with all possible expedition, losing no time to hunt up and inform Tally. Walter and James were at Tally’s house after they knew of it, but there is no evidence that Tally saw either of them. Tally’s own and Walter’s evidence that they did not see each other and proof of circumstances demonstrate that he did not see James until he was riding away. It is said that Tally must be held to have known the intention of the Skeltons to pursue and kill Ross from seeing Robert and John mounted and armed. How could he know this, how are we to be justified in holding that he knew this when it is clearly shown that he did not know Ross had gone at all? And had he known that, how could he justify a conclusion that they were .going to pursue and slay him as he left Scottsboro, when, according to all the evidence we have as to Tally’s knowledge of their intentions, they all wanted him to leave Scottsboro and intended he should go in peace. Again, shall the inference of a murderous intent on Tally’s part, or of his knowledge- of such intent on ' the part of the Skeltons, be drawn from the mere fact that he was seen on two occasions talking with his brother-in-law in the latter’s *52office for half an hour? Obviously not. Shall the fact that one of these occasions was the day before the killing of Ross lead us to say that Tally knew the Skeltons .intended to kill? Of course not. And even less, if possible, would such conclusions be justified when we consider that the only evidence of what passed in these conversations was to the effect, whatever else it .may have imported, that Ross should not be killed if he did what he was manifestly trying to do when he was killed ; leave Scottsboro.
Some other minor circumstances, really of no probative force — such as that Tally was seen at his front gate that morning, once before and once after the Skeltons had gone, that he saw Robert Skelton riding north on a street some distance from him, which fact he brought out himself, and the like — were put in evidence. These we will not stop to discuss. Nor do we deem it necessary to discuss in this connection — with reference to Tally’s knowledge of the Skeltons’ intent when he had the brief interview with Robert that morning — Judge Tally’s conduct after the Skeltons had gone. That conduct is referable to the knowledge he then had, which had been first imparted to him by his wife, and which soon became the common knowledge of the town, that the Skeltons had gone in pursuit of Ross to kill him ; and in our opinion what he did and said after that time will not serve to establish the scienter laid under the first count of the information. We conclude this part of the case by saying that we do not find that Judge Tally had any knowledge of the intention of the Skeltons to kill Ross before or at the time of their departure in pursuit of him, that, therefore, neither of the three specifications under the first count is proved, apd we find him not guilty of the charge of willful neglect of official duty presented by that count.
The second count of the information charges that “John B/Tally, Judge of the Ninth Judicial Circuit of the State of Alabama, unmindful of the d