72 So. 773
Ala. Ct. App.
1916
PELHAM, P. J. —

The defendant was tried and convicted of an assault with intent to murder.

(1) There is no error shown in the Court’s ruling in permitting the state to show by its witness Luther Wilson the declaration made by the defendant during, or just at the termination of the difficulty, to his wife, “to bring his gun; that he had’killed one man [applying a vile epithet] and was going to kill another.” This evidence was competent, and clearly admissible as part of the res gestse of the transaction, and was, in fact, part of and-explanatory of, the circumstances attending the pursuit of the injured party by the defendant at the termination of the main difficulty when the cutting took place, and this part of the transaction had been admitted in evidence without objection as part of the main transaction. The following authorities will be found to support the holding that the defendant’s declaration was admissible as part of the res gestse: Campbell v. State, 133 Ala. 81, 31 South. 802, 91 Am. St. Rep. 17; Maddox v. State, 159 Ala. 53, 48 South. 689; Harris v. State, 177 Ala. 22, 59 South. 205.

(2) The declaration was also admissible for the purpose of showing the hostility of the defendant towards the injured party. — Smith v. State, 183 Ala. 10, 62 South. 864.

(3, 4) The acts of the defendant,in seeking to get witnesses to testify in his favor were properly admitted. If the defendant’s statements to these witnesses were not capable of construction as being an effort upon his part to suppress the truth, or pervert the course of justice, the admission of this testimony was not of a harmful or injurious nature that would constitute reversible error; and, if they were, they were properly admitted to be considered by the jury in connection with any explanation the defendant might offer of an innocent meaning or intention upon his part. — Smith v. State, 183 Ala. 10, 62 South. 864.

(5) The refused charges requested in writing by the defendant and the general charge of the court are not set oub in the record, as required by the provisions of the act of the Legislature approved September 25, 1915 (Acts 1915, p. 815), but are incorporated only in the bill of exceptions. Under the rulings of the Supreme Court in quite a long line of cases, holding that the pro *202 ceedings of the lower court that are required to be made a part of the record proper are not reviewable when they appear only in the bill of exceptions, it might be that since the enactment above referred to, requiring the general and refused and given charges to’ be made a part of the record proper, in the condition of this transcript, the general and refused charges, not being set out in the record, are not presented for review. But, however that may be, we have examined these charges, and, finding no reversible error, we review them without extended detail discussion.

(6) It is true that not every assault which would be murder if it resulted in death is an assault with an intent to murder. But when the assault is upon a particular person, as in the instant case, the inquiry may properly be confined to the question whether or not the crime would have- been murder if the assault had resulted fatally; and the exception to the court’s oral charge on this point is not well taken. — McCormack v. State, 102 Ala. 156, 15 South. 438; Walls v. State, 90 Ala. 618, 622, 8 South. 680.

(7, 8) Considering the court’s oral charge in its entirety, as, is the well-known rule (McNeill v. State, 102 Ala. 126, 15 South. 352, 48 Am. St. Rep. 17), it is a fair exposition of the law as applied to the facts of the case, and excerpts to which exceptions-were reserved, when read in the connection in which they occur, do not show error. As an example, it is urged that the court-committed reversible error in charging ex mero motu: “If a deadly weapon is used to take life, the law presumes malice from its use.”

When we refer to the charge as set out as a whole, we find that this was only part of a sentence, the entire sentence reading : “If a deadly weapon is used to take life, the law presumes malice from its use, unless the evidence in the case refutes that, presumption.”

This is a correct statement of the law. — Hornsby’s Case, 94 Ala. 55, 10 South. 522. Other excerpts excepted to, when, read with the charge in its entirety, are without fault.

(9, 10) The first written charge set out as having been refused to the defendant was misleading, and calculated to impress-, the jury with the belief that the defendant must have a specific or positive intent to take life before he would be guilty of an assault with intent to murder. — See Walls v. State, supra. An intent is a state of the mind, and' not susceptible of direct or- *203 positive proof. If the means chosen are not adapted to the end, it furnishes a strong, but not conclusive, inference that there was no such intentj — Smith’s Case, 8 Ala. App. 205, 206, 62 South. 575.

(11) The second charge ignores the duty to retreat and imminent peril. — Ellis v. State, 105 Ala. 72, 17 South. 119.

(12) The third charge is patently bad. Dempsey could have been at fault in bringing on the difficulty by provoking Wilson to “readily enter the combat at the same time” with him by some act or word of his.

(13) The matters considered practically dispose of all the matters presented for review here on defendant’s motion for a new trial, and the trial court properly denied that motion. It is not shown that any action of the trial court was invoked because of applause indulged in by spectators in the courtroom before entering into the trial of the case. It does not appear that the defendant moved for a continuance on this account, or sought any other ruling of the trial court presenting for review here anything more than a discretionary action in passing on this ground of the motion for a new trial, and no abuse of that discretion is shown.

(14, 15) The ground based on newly discovered evidence in no way negatives the fault of defendant in not sooner discovering this evidence. Due diligence of the defendant is essential in asking favorable action on such showing. The court, in considering the evidence which is alleged to have been discovered after the trial of the case, considered it together with the evidence on the trial, which was in the breast of the court for that purpose (Moneagle & Co., et al. v. Livingston, 150 Ala. 562, 43 South. 840), and reached the conclusion that the evidence did not justify granting a new trial. In this conclusion we concur.

Affirmed.