A. J. WALKER, O. J.—
The specific intent to commit murder is an essential ingredient of the crime of an assault with intent to commit murder. To a conviction ©f that crime it is indispensable that the existence of such intent should be proved.—Ogletree v. The State, 28 Ala. 693; Scitz v. The State, 23 Ala. 42. Drunkenness certainly does not excuse or palliate any offense. But it *421may produce a state of mind, in which the accused would be totally incapable of entertaining or forming the positive and particular intent requisite to make out the offense. In such a ease, the accused is entitled to art acquittal of the felony, not because of his drunkenness, but because he was in a state of mind, resulting from drunkenness, which affords a negation of one of the facts necessary to his conviction.—Amer. Criminal Law, § 41; Wharton’s Law of Homicide, 368; 14 Ohio, 555; Swan v. The State, 4 Humph. R. 136; Pertle v. The State, 9 Humph. 663; Pennsylvania v. McFall, Addison, 255; 1 Baldwin, 514; Haile v. The State, 11 Humph. 154.
The decision in Bullock v. The State, 13 Ala. 413, was made without detecting the error in the printing of the statute by substituting “ attempt ” for “ intent.” That error was not exposed, nor the true reading of the statute declared, until the State v. Marshall, 14 Ala. 411, was decided. The reasoning and authorities adduced by the court in the State v. Bullock sustain the conclusion which we have expressed.
The court erred in the refusal to give the first charge asked.
[2.] The court committed no error in the refusal of the second charge, because it made a previous assault upon the accused a complete defense, notwithstanding the injury inflicted by the prisoner was out of all proportion to the injury inflicted on him, and not called for by the necessities of the occasion.—Wharton’s Am. Crim. Law, 1253, 1258.
[3.] The third charge was also properly refused. The absence of an intent to murder did not, of itself, entitle the accused to a verdict of not guilty. Notwithstanding the jury might have found there was no such intention, he might have been guilty of an assault and battery, and been convicted of it.
The judgment of the circuit court is reversed, and the cause remanded; and the prisoner must remain in custody, until discharged by due course of law.