Appellant was convicted of the offense of assault with intent to murder.
It would not be of service to discuss the testimony. That for the state and for the appellant was in conflict, and was properly submitted to the jury.
Under the authority of the opinion in Thornton v. State,90 So. 66" date_filed="1921-06-21" court="Ala. Ct. App." case_name="Thornton v. State">90 So. 66, 18 Ala. App. 225" date_filed="1921-06-21" court="Ala. Ct. App." case_name="Thornton v. State">18 Ala. App. 225, and the cases therein cited, it was error to refuse to allow appellant to make the proof, by the witness Berry, that some week or 10 days prior to the difficulty in question appellant and the party assaulted had had a difficulty about appellant's wife. The law governing the admission in evidence of testimony as to former difficulties is well stated in the Thornton Case, supra, and we content ourselves here by merely referring to that case.
It seems that the court, in the portion of the oral charge made the basis of the exception which has been by appellant's counsel, conveniently for us, designated assignment of error No. 6, sought to give, and did give, to the jury the same erroneous proposition of law, which caused the same court to suffer reversal in the cases of Green v. State, 96 So. 651" date_filed="1923-05-15" court="Ala. Ct. App." case_name="Green v. State">96 So. 651,19 Ala. App. 239" date_filed="1923-05-15" court="Ala. Ct. App." case_name="Green v. State">19 Ala. App. 239, and Mann v. State, 103 So. 604" date_filed="1925-03-24" court="Ala. Ct. App." case_name="Mann v. State">103 So. 604, 20 Ala. App. 540" date_filed="1925-03-24" court="Ala. Ct. App." case_name="Mann v. State">20 Ala. App. 540, although the verbiage, in the instant case, is slightly different from that in the two cases mentioned. The law is that the jury may consider the testimony of the defendant in the light of his interest in the case, not that they must. The specified portion of the oral charge of the court here under consideration would of itself be sufficient reason for reversing this case.
We fail to see the vice in the portion of the oral charge of the court, made the basis of appellant's assignment of error No. 4, so strenuously contended for in the excellent brief filed by his counsel on this appeal.
The written refused charges made the basis of assignments of error 7 and 8 were each bad, in that they each ignored the question of freedom from fault in bringing on the difficulty. Lane v. State, 101 So. 521" date_filed="1924-06-24" court="Ala. Ct. App." case_name="Lane v. State">101 So. 521, 20 Ala. App. 192" date_filed="1924-06-24" court="Ala. Ct. App." case_name="Lane v. State">20 Ala. App. 192.
For the errors pointed out, let the judgment be reversed, and the cause remanded.
Reversed and remanded.