PELHAM, P. J.
The only questions discussed by defendant’s counsel in brief relate to the refusal of the trial court to give the written instructions numbered 1, 3, and 6, requested by the defendant.
(1) To put the court in error for refusing charge No. 1, it would be necessary to say that the court was required to charge as a matter of law that whether or not the prosecuting witness was drinking (drunk and drinking being disjunctively predicated in the charge) at the time of the alleged assault was a material fact as related to the evidence in the case. We do not think the evidence justifies this requirement, or that the court can be put in error for refusing to so charge as a matter of law.
*183(2) Charge No. 3 refused to the defendant is a correct charge, was not abstract, and its refusal was error.—McClellan v. State, 117 Ala. 140, 23 South. 653; A. G. S. R. R. Co. v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep. 28; Childs v. State, 76 Ala. 93; Jordan v. State, 81 Ala. 20, 1 South. 577; Lowe v. State, 88 Ala. 8, 7 South. 97; Parham v. State, 147 Ala. 69, 42 South. 1; Ala. S. & W. Co. v. Griffin, 149 Ala. 439, 42 South. 1034; Gillespie v. Hester, 160 Ala. 449, 49 South. 580; Aycock v. Schwartzchild, etc., 4 Ala. App. 610, 58 South. 811.
(3) Defendant’s refused charge No. 6 predicates an acquittal on the jury’s belief in a single proven fact consistent with the defendant’s innocence, and not a single fact inconsistent with the guilt of the accused, as predicated in the charge in Roberson’s Case, 175 Ala. 15, 57 South. 829. This is an entirely different proposition, that does not bring the charge within the principle approved in Roberson’s Pasej and on this proposition, for that matter, the latter case has been overruled and a similar charge condemned in the late case of Ex parte Davis, 184 Ala. 26, 63 South. 1010.
We have examined the entire record and find no reversible error in any other of the numerous questions presented. For the error pointed out, in refusing to the defendant written instruction No. 3, a reversal must be ordered.
Reversed and remanded.