| Ala. | Nov 15, 1900
One who intervenes in a pending difficulty in behalf of a brother and takes the life of the other original combatant stands in the shoes of the brother in respect of fault in bringing on the difficulty, and he cannot defend upon the ground that his brother was in Imminent and deadly peril and could not retreat, unless the latter could have defended upon that ground had he killed his assailant. Henee in such cases it is a material inquiry whether defendant’s brother was at fault in bringing on the difficulty with the deceased, and the same doctrine obtains, of course, where the charge is assault with intent to murder; and as hearing upon this inquiry presented in the case at bar the court properly admitted the testimony of Brooks to the effect that Marion Wood approached him with his hand in his pock
The trial court did not err in excluding testimony going to the particulars of the previous difficulty between Brooks and Marion Wood. — Stewart v. State, 78 Ala. 436" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/stewart-v-state-6512271?utm_source=webapp" opinion_id="6512271">78 Ala. 436.
Charge 5 AA'as properly refused. It is not essential to a conviction of an assault with intent to murder that the defendant acted deliberately and with premeditation. Meredith v. State, 60 Ala. 441" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/meredith-v-state-6510095?utm_source=webapp" opinion_id="6510095">60 Ala. 441; Lawrence v. State, 84 Ala. 425; Welch v. State, 124 Ala. 41" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/welch-v-state-6518310?utm_source=webapp" opinion_id="6518310">124 Ala. 41; Gilmore v. State, 126 Ala. 21.
The affirmative charge Avas of course properly refused to defendant, there being evidence tending to prove every averment of the indictment and the plea being “not guilty.”
Affirmed.