
    Deal v. The State.
    
      Indictment for Assn,alt with Intent to Murder.
    1. Evidence; identity of defendant. — On the trial of one indicted for assault with intent to murder, who- is indicted jointly with two others, evidence that after the assault one of the three went across the street in the direction of a market place, is rendered admissible by evidence subsequently introduced tending to show that defendant was ait that market place a few minutes after the cutting and there said he had cut the person alleged to have been assaulted.
    2. Criminal law; evidence; materiality. — Evidence is inadmissible for defendant in a criminal case as to what office was held bv the witness testifying and who made the arrest; the same being immaterial.
    3. Same; laying predicate for impeachment. — Where no predicate has been laid for impeaching a witness, it is proper not to allow defendant to prove what statement was made by the witness after the difficulty as to who cut him.
    4. Witnesses; credibility; Code, §,§ 1795, 1796. — The fact that a witness has been convicted for burning a gin house is admissible as bearing on his credibility.
    
      5. Charge of court; conflict between oral charge and special dharges. On the trial of a criminal case, the giving at the request of the State of a charge asserting that the charges given at defendant’s request are not in conflict with the general charge of the court, is not error, unless the record affirmatively shows that there was such conflict.
    6. Same; singling out portions of the evidence. — In a criminal case a charge requested by defendant has an undue tendency to withdraw the jury’s consideration from the whole to particular parts of the evidence, which asserts, that “If there is any one fact arising out of the evidence which is sufficient to create a reasonable doubt in the mind of the jury, then the jury should find the defendant not guilty.”
    7. Same; involved and argumentative charge. — -In a criminal case a charge for defendant is involved and argumentative and properly refused which instructs that “Before the jury can convict the defendant they must be satisfied to a moral certainty not only that the proof is consistent with the de-
    
      fendant’s guilt, trat that it is wholly inconsistent with every other rational conclusion, and unless they are so convinced by the evidence of defendant’s guilt that they would each venture to act upon that decision upon matters of the highest concern and importance , to his own interest, then rney must find the defendant not guilty.”
    8. Assault with intent to murder; charge; former difficulty. Where the only evidence of an attack on defendant by H., the person alleged to have been assaulted, related to a time preceding the difficulty in which defendant cut him, a charge is improper which predicates a right on defendant’s part to cut such person in the last difficulty on account of what had occurred in the first.
    9. Same; fault in bringing on difficulty; invading province of the jury. — A charge invades the province of the jury which asserts that the defendant “was wuuout fault in bringing on the difficulty.”
    .10. Same; previous difficulty; charge. — Where D. was being tried for an assault with intent to murder H., an instruction for defendant is argumentative and gives undue prominence to the conduct of H., which instructs the jury that “If the jury believe from the evidence that H. assaulted D. at the time of the difficulty, then tney may consider the previous conduct of H. toward D., if they had had any previous intercourse, in determining how much force was necessary to repel the assault, unless they believe that D. was at fault in bringing on tue difficulty.”
    11. Same; invading jury's province; repelling assault. — Where D. is on trial for assault with intent to murder H., a charge invades the jury’s province which instructs that “If the jury believe from the evidence that H. lattacked D. at the time of the difficulty, and- that D. was without fault in bringing on the difficulty, then they cannot convict the defendant of an assault to murder, although you may find that D. used more force in repelling the difficulty than was reasonably necessary.”
    12. Assault to murder; conspiracy; liability of one for acts of others. — On 'the separate trial of one charged with two others with assault with ihtent to murder, where there is evidence tending to show a combination of purpose and er-fort to cut and murder the person alleged to have been assaulted, defendant is liable for the aots of his co-conspirators 'in carrying out that purpose as well as for his own a As; and a charge is properly refused which seeks to limit ¡.U evidence as to their acts to explain the conduct of defendant at and before the difficulty.
    
      13.. Same; retreat; former difficulty; .freedom from fault.- — On the , , trial of ■ one charged with assault with intent to murder, ■ . there was evidence. for defendant tending to show -that on the same afternoon, hut before the parties met in the cutting affray, H., the person alleged to .have been assaulted, had cursed defendant and pursued him with a drawn knife; that shortly thereafter-, as defendant was passing H., the latter caught him in the collar and knocked him to his knees, and that then while H. was on him, defendant drew his knife and cut H. Held: The defendant was entitled to have the jury instructed that “If the defendant was free from fault in bringing on the difficulty, then he was under no duty to retreat unless you believe he could have retreated without increasing his danger or with reasonable safety.”
    Appeal from the •Circuit Court of Henry.
    Tried before the Hon. John P. Hubbard.
    Henry Deal was indicted, jointly with two others, • for assault with intent to murder one Hatcher. He demanded a severance, and on his trial was convicted.
    The errors arising on the introduction of the evidence Sufficiently appear from the opinion.
    The court gave, at the request of the state, the following special written charges, viz: (1.) “The court charges the jury that if they believe from the evidence in this case beyond a reasonable doubt that the defendant on the first day of Eebruary, 1902, assaulted Monroe Hatcher with the intent to murder him, then they must find the defendant guilty as charged.” (2.) “The court charges the jury that the written charges given at the request of the defendant in this case are not in conflict with the general charge of the court.
    The court refused to defendant the following special written charges requested by him, separately, namely: (4.) “If there is any one fact arising out of the evidence which is sufficient to create a reasonable doubt in the mind of the jury, then the jury should find the defendant not guilty.” (5.) “The court charges the jury that before the jury can convict the defendant, they must be satisfied to a moral certainty not ofily that the proof is consistent with the defendant’s guilt, but that it is wholly inconsistent with every other rational conclusion, and unless they are so convinced by the evidence of defendant’s guilt tliat they would each ventue to act upon that decision upon tbe matters of the highest concern and importance to his own interest; then they must find the. defendant not guilty.” (7.) “If the jury believe from the evidence that Hatcher was angry with Deal, and had attacked him with a knife just before the fight, then Deal had the right to defend himself with whatever force, was reasonably necessary to repel the assault, if the jury further find that Hatcher was the assailant at the time of the difficulty, and if you further find that Deal could not have■ retreated without increasing his danger or with reasonable safety, and that Deal was without fault in bringing on the difficulty.” (8.) “If the jury believe from the evidence that Hatcher attacked Deal at the time of the difficulty, then you must find the defendant not guilty, unless you believe beyond a reasonable doubt that Déal used more force than was reaconably necessary or unless you further believe that Deal could have retreated with reasonable safety or without increasing his peril. Deal nas without fault in bringing on the difficulty.” (9.) “If the jury believe from the evidence that Hatcher assaulted Deal at the time of the difficulty, then they may consider the previous conduct of Hatcher toward Deal, if they had had any previous intercourse, in determining how much force was necessary to repel the assault, unless they believe that Deal was at fault in bringing on the difficulty.” (10.) “If the jury ge-lieve the evidence in this case, they must find the defendant not guilty.” (11.) “If the jury believe from 1he evidence that Hatcher attacked Deal at the time of the difficulty, and that Deal was without fault in bringing on the difficulty, then they can not convict the defendant of assault to murder, although you may find that Deal used more force in repelling the ■ difficulty than was reasonably necessary".” (12.) “If the defendant was free from fault in bringing on the difficulty", then he was under no duty to retreat, unless you believe he could have retreated without increasing his danger or with reasonable safety.” (13.) “The jury are not authorized to consider the evidence with reference to- Keahey and Hannan except in so far as it may tend to explain the conduct of Deal, at and prior to the difficulty.”
    The defendant appeals, and assigns said rulings upon the evidence and the action of the conrjt in reference to said charges as error.
    R. D. Crawford, for appellant.
    Massby Wilson, Attorney-Gentral, for the State.
   SHARPE, J.

Defendant was tried separately on an indictment charging him, and Keahey, and Harman jointly, avItli an assault with intent to murder Hatcher. Evidence for the State tended to show that the three so indicted approached to where Hatcher stood and at the same time attacked him with knives and that defendant cut Hatcher’s neck and each of the others cut his clothes.

For the defense there was evidence tending to show that on the same afternoon hut before the parties met in the cutting affray, Hatcher had cursed defendant and had pursued him with a drawn knife, that shortly thereafter as defendant was passing Hatcher the latter caught defendant in the collar and knocked him to his knees, and that then while Hatcher was on him defendant drew his knife and cut Hatcher.

A witness who had testified that defendant, Keahey and Harman fied after assaulting Hatcher, was against defendant’s objection allowed to testify that one of them went across the street in the direction of a market place. If to render this statement admissible as evidence it was necessary to identify the person so testified about as being the defendant, such identification was furnished by evidence subsequently introduced which tended to show defendant was at that market place a few minutes after the cutting and there said he had cut Hatcher and hoped he had killed him.

Defendant asked one of his Avitnesses Avhat office he tire witness held and who made the arrest. An objection to this question Avas properly sustained. The matter inquired of Avas immaterial.

No predicate having been laid for impeaching Hatcher the court properly refused to allow defendant to prove what statement was made by Hatcher after the difficulty as to who cut him. The proof if made would have been hearsay.

Section 1796 of the Code gave the State 'a right to examine a witness for defendant touching his conviction for crime. The fact that the witness had.been convicted for burning a gin house went to his credibility. Code, § 1795.

The first charge given at the State’s instance was plainly correct.

What the court charged the, jury orally is not shoAvn by the bill of excpetions and therefore it cannot be seen that there was any conflict between the oral charge and the charges given in writing. In the absence of an affir- . mative showing that there was such conflict, the giving of charge 2 for the State cannot be deemed erroneous. Home Protection of North Ala. v. Whidden, 103 Ala. 203; Davis v. State, ante. p. 20.

With a single exception to he hereinafter noted the charges refused to the defendant were each had.

Charge 4 had an undue tendency to withdraw the consideration of the jury from the whole to particular parts of the evidence as going to the creation of a reasonable doubt.

Charge 5 is involved and argumentative. — Amos v. State, 123 Ala. 51.

The only evidence of an attack with a knife made hv Hatcher had relation to a time preceding the difficulty in which the defendant cut him. Charge 7 improperly predicates a right to cut Hatcher in the last difficulty on account of what had occurred in the first.

Charge 8 asserts that “Deal Avas without fault in bringing on the difficulty,” and so unwarrantably proposed to withdraAV from the jury the question of Avhose was the fault.

('’barge 9 is argumentative and gives undue prominence to the conduct of Hatcher as exhibited previous to the cutting.

Charges 10 and 11 Avould each have invaded the jury’s province.

If as the evidence tends to show there was as between defendant and Keahey and Hannan a combó nation of purpose and effort to. cut and murder Hatcher, defendant is responsible for the acts of Keahey and Harmon in carrying' out that purpose as well as for his own acts; hence- the limitation which charge 13 purported to place, on the effect of the evidence having refenence to Keahey and Harman was an improper one.

In view of the whole evidence and especially of that phase of it favoring the defense, the defendant was entitled to have the jury instructed as proposed by charge 12, that-“if the defendant was free from fault in bringing on the difficulty then he was under no duty to retreat unless you believe he could have retreated without increasing his danger or with reasonable safety.” See De Arman v. State, 71 Ala. 351; Bish. New Crim. Law, § 875. The refusal of this charge was error for which the judgment will be reversed.

Reversed and remanded.  