¶1The defendant was convicted of murder in the second degree, and sentenced to imprisonment in the. penitentiary for 50 years.
¶2It is plain law that flight may be given in evidence as a criminating circumstance against the defendant. It is also true that all the facts, connected with the flight, either to increase or diminish the probative force of the fact itself, may he given in evidence. And it was said by this court in Bowle’s Case, and reaffirmed in White’s Case, that “the. unfavorable inference against the prisoner (from proof of flight) would he lessened if lie voluntarily returned and surrendered himself to answer the accusation.” — Bowle’s Case, 58 Ala. 335; White’s Case, 111 Ala. 92, 21 South. 330. The state proved by several witnesses that the defendant, when lie cut the deceased, ran off. It cannot be doubted that this was evidence tending to show flight. The defendant is a negro. His counsel proposed to show that he went from the scene of the difficulty to the house of Mr. Gordon, a white man in the neighborhood, and surrendered him*65self to him, and that Gordon thereupon carried defendant to Athens and delivered him to the sheriff. On the authorities supra we are constrained to hold that the court erred in not allowing the proof to be made by Gordon. We must not be misunderstood. Proof of voluntary surrender is competent only in cases where proof of flight has been made and in response to such proof.
¶3It is insisted by counsel for the state that the error in not allowing the proof to be made by Gordon was without injury to the defendant, as the defendant was subsequently allowed as a witness in his own behalf to testify to the facts offered to be proved by Gordon, and that there was no evidence contradictory to his on this subject. We cannot say that injury did not follow from the error. The jury may not have believed the defendant. At any rate, we cannot say that they accepted his testimony in this respect as the truth.
¶4There was no error in the refusal to give the written charges requested by the defendant. Charge 1 is invasive of the province of the jury. Charge 2 is misleadng. Charge 3 fails to set out the elements of self-defense.
¶5The defendant is indicted for a capital offense and we feel it our duty to call attention to the imperfect condition of the record. The record fails to disclose that an order was made requiring the sheriff to serve on the defendant one entire day before the day fixed for the trial a copy of the indictment and the venire. — Code 1896, § 5273; Spicer’s Case, 69 Ala. 159. More care should he taken than is evidenced by this record to see that statutory requirements are complied with.
¶6The judgment is reversed, and the cause remanded.