
    179 So. 262
    BYNUM v. STATE.
    7 Div. 306.
    Court of Appeals of Alabama.
    Feb. 8, 1938.
    J. Valdor Curtis, of Fort Payne, for appellant.
    A. A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
   SAMFORD, Judge.

The evidence in the record tends to prove that the accused and the assaulted party had a difficulty wherein the assaulted party1 was shot in the back by the accused.

The State’s evidence tends to show that the assault was without provocation, while that for the defendant tended to pr<?ve self-defense. Both parties were drinking at the time, as were some of the witnesses. This condition probably accounts for the varying statements made by them as to what transpired. In any event the evidence presents a jury question, and for that reason the general affirmative charge was properly refused and the motion for a new trial was properly overruled.

Other questions have been examined and found to be without merit.

The judgment is affirmed.

Affirmed.  