— The defendant presented the following written charge, and asked that it be given to the jury: “The State must prove its charge, and prove it beyond a reasonable doubt by evidence. The assertions of counsel are not evidence.” This charge ought to have been given. Coleman v. State, 59 Ala. 52; Tatum v. State, 63 Ala. 147.
There was certainly no evidence that the Bass Furnace Company, or Woodward, the prosecuting witness, was either rich or poor. Such testimony, if offered, would have been illegal. Counsel, in argument, should not have been allowed to comment on the one as rich, and the other as poor.
It is true that intent is matter of fact, and can not be implied as matter of law. It may be, and frequently is, inferred from tbe employment of an instrument or weapon calculated to produce death, or from an act of violence, from which, ordinarily, in tbe usual course of events, death or great bodily harm may result. — Harrington v. State, 83 Ala. 9. Charges asked, seeking to raise this question, were calculated to mislead, and were rightly refused on that account. So, the charges which assert that an actual intent to kill is a necessary ingredient of the offense charged, are equally faulty.
“Sudden passion from an immediate insult,” is not enough to repel the imputation of malice. Mere words never reduce a homicide from murder to manslaughter.
An assault is an intentional attempt to strike within striking distance, which fails of its intended effect, either by preventive interference, or by misadventure.
There is nothing in the other questions presented.
Reversed and remanded.