
    SKAINS AND LEWIS vs. THE STATE.
    1. When two are indicted for an affray, proof “ that several months before the occurrence of the affray, they had fought together, on which occasion one had attempted to strike the other, and said lie would kill him if he could get at him,” is not admissible evidence against the one making the threat, when there is no proof connecting this rencounter with the affray for which the parties were on trial, or showing that the latter grew out of the former.
    2. The eighth section of the third chapter of the Penal Code, (Clay’s Digest. 413, § 8,) was intended to create a new offence, and attach to it a new penalty; and before the penalty denounced by it against the offender can bo inflicted,^ the indictment must be framed in reference to the statute, and conform to its letter or substance.
    
      3. When two are indicted for an affray at common law, it is erroneous for the court, by its instructions to the jury, to take away or limit their discretion with regard to the amount of the fine to be assessed in the event of a conviction.
    4.. When there is a conflict in the testimony, a charge upon the facts of the case, which assumes the contested fact as proved, invades the province of the jury, and is properly refused.
    Ereor to tbe Circuit Court of Butler.
    Tried before tbe Hon. E. Pickens.
    The plaintiffs in error were indicted in the Circuit Court of Butler County for an affray, and on the trial, each of them excepted to the ruling of the court, and two bills of exceptions are found in the record.
    From the bill of exceptions taken by Lewis, it appears, that proof was introduced which tended to show, that the defendants had a difficulty and a quarrel, in a grocery, a crowd of persons being assembled at the time. The proof also tended to show, that the house belonged to Lewis, and that the difficulty occurred in the house; that Lewis ordered the defendant, Skains, out of the house, but he refused to go, and threatened to whip Lewis; that Lewis was behind the counter, and took a gun, and cocked and presented it at Skains; that one Staggers, who was present in the grog shop, told him not to shoot; that Lewis then raised the muzzle of the gun above the range of Skains, and while it was so raised, it went off, the shot going into the roof of the house, entirely above the head of the defendant, Skains. The proof also tended to show, that Skains, about the time Lewis’s gun firedj was getting a gun to shoot Lewis, and immediately after Lewis had fired, Skains shot at him. Several persons were present in the house at the time of the shooting.
    Upon this proof, the court, after charging the law in relation to affrays, charged the jury, that if they found the defendants guilty of an affray, an assemblage of people' being present, and found, also, that 'fire-arms were used, not in self-de-fence, they could not finb either of the defendants less than one hundred dollars, amd might fine them five hundred, or imprison them six months. To this charge, the defendant, Lewis, excepted, and asked the court to charge the jury, that if tbey found from the evidence that there was no attempt to shoot by Lewis, and that the gun went off without his intending it at the time, and the load went into the roof of the house, not in the direction of Skains, this would not constitute an assault by Lewis; which charge the judge gave, but with this qualification, that if Lewis intended to shoot, and the gun went off before he was ready, it would amount to an assault. To the refusal to give the charge asked without the qualification, the defendant, Lewis, excepted, and also excepted to the qualification given.
    In the bill of exceptions taken by Skains, it appears, that the proof tended to show, that the defendants were at a house owned by Lewis, and used by him as'a grocery; that many other persons were there at a justice’s court; and that while they were there, in the house, a quarrel arose between the defendants, which commenced out of the house; Skains followed Lewis into the house; thereupon Lewis ordered Skains to go out of the house, and the latter started to go out, and while he was going towards the door, in an opposite direction from Lewis, the latter picked up his gun, which was loaded, and cocked, and presented it at Skains, upon which Skains sprang to the corner of the house near him, where a gun happened to be standing; and about this time, while Lewis was lowering his gun, as if again to point it, it fired considerably above the head of Skains, who was turning towards Lewis, and immediately after Lewis fired, Skains also fired his gun in the direction of Lewis. The proof also tended to show, that before Skains started out of the house, he told Lewis repeatedly that, if he would go out with him, he would whip him, manifesting a wish to fight. On this state of proof, the counsel for Skains asked the court to charge the jury, that, although they should find, from the proof, that Skains told Lewis that if 1 /'would go out of the house he would whip him, yet, if Skains startéd to go out of the house when ordered by Lewis, and while going out from where Lewis was, the latter drew and presented^ loaded and cocked gun at him, that then Skains had a rightto take up a gun which was near him and defend himself; wffi^ch charge was refused, and Skains excepted. \
    The court then charged the jury stated in the first charge mentioned in tbe bill of exceptions of Lewis, to wbicb Skains also excepted.
    On tbe trial, tbe defendant, Lewis, offered to prove by a witness, that, several months prior to tbe affray at the grocery, tbe defendants bad fought, and in that fight Skains attempted to strike Lewis with a piece of iron, and said if be could get at him be would kill him. This was said while Lewis was loading a musket. Skains objected to tbe introduction of this proof, unless it was directly connected with tbe affray for wbicb they were then on trial. Tbe court overruled tbe objection, and allowed tbe proof to go to tbe jury; to wbicb Skains, by bis counsel, objected.
    Tbe plaintiffs now severally assign errors. Tbe errors assigned by Skains, are:
    1. Tbe refusal to charge as requested by Skains’ counsel;
    2. Tbe charge given;
    3. Tbe admission of tbe evidence of tbe former affray.
    Tbe errors assigned by Lewis, are:
    1. Tbe charge given by tbe court;
    2. Tbe refusal to charge as requested, without tbe quahfi-cation.
    3. Tbe qualification given to tbe charge asked.
    J. E. JOHNSON, for Skains; and Watts, Judge & Jackson, for Lewis.
    M. A. Baldwin, Attorney General, for tbe State.
   LIGON, J.

— Tbe record presents two bills of exceptions, taken by tbe defendants in tbe court below, when on trial on an indictment for an affray.

It appears by tbe bill of exceptions certified and sealed at tbe instance of tbe defendant, Skains, that bis co-defendant, Lewis, offered to prove, that, several months before tbe occurrence of tbe affray for wbicb they were then on trial, tbe defendants bad fought together, when tbe former bad attempted to strike tbe latter with a piece of iron, and said if be could get at him be would kill him. To tbe introduction of this proof, without connecting tbe remark used by him on that occasion with tbe affray for wbicb be was then on trial, tbe defendant, Skains, by his counsel, objected. Tbe objection was overruled by tbe court, and tbe testimony was allowed to go to tbe jury, to wbicb Skains excepted.

I cannot perceive wbat connection tbe conduct and language of Skains on tbe former occasion could possibly have with tbe affray for wbicb be was put on bis trial in tbe court below. Tbe language used by bim contains no threat of wbat be would do in future, but is tbe mere expression of an angry man, debarred of present vengeance by tbe interposition of others, and spoken when tbe party using it was laboring under tbe excitement of recent conflict with bis adversary. There is no proof whatever that connects this rencounter with tbe affray for wbicb tbe parties were on trial, or that tbe latter grew out of tbe former. Tbe two crimes are distinct from, and independent of each other, and if it was desired to punish Skains for bis conduct on tbe occasion of tbe first fight between himself and Lewis, be should have been indicted for it; but it is not allowable to prove it, for tbe purpose of aggravating tbe fine in a case with wbicb it bad no connection, and as to wbicb all proof concerning it would be wholly irrelevant. That it did aggravate tbe fine of Skains in tbe case under consideration, we think is conclusively shown by tbe finding of tbe jury; for tbe difference in tbe amount of bis fine, and that assessed against Lewis, can be reasonably accounted for on no other hypothesis.

We think, also, that tbe first charge set out in both bills of exceptions, cannot be supported under tbe indictment in this case. Tbe statute in reference to wbicb tbe charge is given, is in these words: “If any person shall be guilty of fighting-in tbe streets of any city or town, or at any militia muster, or other place public in itself, or made public by any assemblage of people for any purpose whatever, and shall employ or use, during such fight, any fire arms or air gun, by discharging or attempting to discharge tbe same, unless in self-defence, such person shall, on conviction thereof, be fined in a sum not less than one hundred, nor more than five hundred dollars, or be imprisoned in tbe county jail for a term not exceeding six months, or both, at tb® discretion of tbe jury trying such offencé.” Clay’s Dig. 413, § 8.

It is evident, from tbe language of this act, tb^t tha Legislature intended to create a new offence, and attach to it a new penalty; when tbis is tbe case, tbe indictment must be framed in reference to tbe statute, and conform either to its letter or substance, before tbe penalty denounced against tbe offender can be inflicted. State v. Click, 2 Ala. 16; State v. Mahan, ib. 340; Worrell v. State, 12 ib. 732; State v. Bullock, 13 ib. 413.

Tbe indictment in tbe case under consideration, is in tbe ordinary form of an indictment at common law for an affray, nnd was never intended by tbe pleader to be conformed to tbe provisions of tbe statute above cited. It was, therefore, clearly erroneous for tbe court, by its instructions to tbe jury, to take away or limit their discretion with regard to tbe amount of tbe fine to be assessed in tbe event of conviction.

As to tbe charge requested by Skains, it was rightly refused, for tbe reason that it is a charge upon tbe facts of tbe case, and, if given, would have invaded tbe province of tbe jury, to which alone belongs tbe right to weigh tbe testimony and draw deductions and inferences from it, especially where there is a conflict in tbe testimony, as in tbe present case. In such cases tbe court cannot assume, by its charge, that tbe contested fact is proved; tbe jury must judge of tbe credit of the witnesses, and settle that question for themselves.

Tbe only remaining question in tbe case, involves tbe exceptions of Lewis to tbe charge asked for by him, and given, with a qualification, by tbe court. That charge is couched in such terms, that we cannot agree upon what interpretation should be given it, and, consequently, wé express no opinion in reference to it.

For tbe error in allowing tbe proof objected to by Skains, as recited in bis bill of exceptions, to go to tbe jury, and in tbe charge excepted to by both defendants below, tbe judgment must be reversed, and tbe cause remanded.  