[Hooten v. The State.]

who evinces a willingness to enter the conflict, or, as predicated in the second charge, "enters the fight willingly," is held to have produced the necessity of slaying his adversary and cannot invoke self-defense.-Stallworth v. State, 146 Ala. 8, 41 South. 181. Charge 3 is a correct statement of the law.-Parham v. State, 147 Ala. 57, 42 South. 1; Gregory v. State, 148 Ala. 566, 42 South. 829.

Charge No. 2, refused to the defendant, is faulty in failing to predicate that the killing was in a sudden rencounter or affray (Code, § 7086), and is misleading in that the defendant must not only not have been the assailant (the aggressor) and provoked the difficulty, but must have been entirely free from fault in having brought it on (Smith v. State, 142 Ala. 14, 39 South. 329) notwithstanding the use of the word "assailant" in the statute. The charge as part of its predicate improperly requires the state to prove that the deceased did not know that the defendant had the pistol when the fight commenced, hypothesizing a fact, too, of which there was no evidence (Lewis v. State, 178 Ala. 10, 59 South. 577) and raising a question which was not an issue on the trial (Washington v. State, 155 Ala. 2, 46 South. 778). The charge is also misleading in not stating the conditions under which the state is required to prove freedom from fault.—Crumpton v. State, 167 Ala. 4, 52 South. 605.

Refused charge No. 3 directed the attention of the jury to a particular phase of the testimony of the witness and instructed them to weigh the evidence on that subject (Coates v. State, 1 Ala. App. 35, 56 South. 6) and a charge which singles out a particular feature of the evidence is properly refused.-Savage v. State, 174 Ala. 94, 57 South. 469; Parris v. State, 175 Ala. 1, 57 South. 857.

[Brown v. The State.]

Other charges refused to the defendant are palpably bad or are fully covered by the 57 charges given at his request.

We have examined the rather voluminous, but well prepared, record and find no reversible error or other question presented that we deem of sufficient merit to necessitate discussion.

Affirmed.

Brown v. The State.

Murder.

(Decided December 18, 1913. 64 South. 170.)

Evidence; Reputation of Third Parties.-Where a defendant entered a plea of not guilty by reason of insanity, and in support thereof, offered evidence having some tendency to prove that he was mentally unbalanced on account of information which had come to him of the existence of illicit relations between his wife and the deceased, the admission, in rebuttal, of evidence as to the general reputation of the wife for chastity, was error, she not being a witness. Evidence as to the character or reputation of third persons not being relevant, and it being incompetent to make the character of the wife the direct subject of inquiry on a trial of the husband for crime, when she is not a witness, and not in any manner connected with or interested in the prosecution or defense.

APPEAL from Mobile City Court.

Heard before Hon. O. J. SEMMES.

William J. Brown was convicted of manslaughter, and he appeals. Reversed and remanded.

C. W. TOMPKINS and HARRY B. GROOM, for appellant. The court was in error in permitting the character of the wife of defendant for chastity to be introduced, although in rebuttal to some facts brought out by the defendant tending to show insanity because of illicit relations between deceased and his wife.-Koch v. The

[Brown v. The State.]

State, 115 Ala. 99; Smith v. The State, 59 South. 329; Rollins v. The State, 49 South. 329; 1 Elliott on Ev. 168. Counsel discuss other matters, but in view of the opinion it is not deemed necessary to set them out.

ROBERT C. BRICKELL, Attorney General, and THOMAS H. SEAY, Assistant Attorney General, for the State. It is submitted that the evidence objected to was competent in rebuttal, for the purpose of informing the jury as to the true character of the wife, and as shedding light on the defense.

WALKER, P. J.-In support of his plea of not guilty by reason of insanity, the defendant offered evidence having some tendency to prove that he was mentally unbalanced or overwrought in consequence of information which had come to him of the existence of illicit relations between his wife and the deceased. Over objections and exceptions duly made and reserved by the defendant, the prosecution was permitted to introduce in rebuttal the testimony of several witnesses to the effect that they knew the general reputation as to chastity and virtue of the defendant's wife in the community in which she lived, and that that reputation was good. We are of opinion that the court was in error in admitting this testimony. The person, whose general reputation in the respect mentioned was permitted to be testified about, was not a witness in the case, and her reputation was not a matter within the issues to be passed on. We discover nothing about this testimony to remove it from the influence of the general rules that evidence as to the character or reputation of third persons is irrelevant and inadmissible, and that the character of the wife cannot be made a direct subject of inquiry, on the trial of the husband for crime, when she is not a witness and

[Tarver v. The State.]

not interested in, or in any manner connected with, the prosecution or defense.-Rollings v. State, 160 Ala. 82, 49 South. 329; Koch v. State, 115 Ala. 99, 22 South. 471; 12 Cyc. 418. The defendant had not, by the testimony he had offered as to information imparted to him of specific misconduct of his wife, raised an issue or question as to her general reputation in any respect, so as to make evidence to the effect that she had a good reputation for chastity admissible in rebuttal. The evidence offered by him was not properly subject to be rebutted or discredited by irrelevant and inadmissible testimony as to the good reputation for chastity of a person whose character or reputation was a matter foreign to any issue in the case.

Other questions presented need not be passed on, as such of them as would have merited discussion in any event are not liable to arise in another trial.

Reversed and remanded.

Tarver v. The State.

Assault with Intent to Murder.

(Decided January 15, 1914. 64 South. 161.)

1. Criminal Law; Former Jeopardy; Misdemeanor and Felony.Under section 1221, Code 1907, a conviction of a misdemeanor in a recorder's court is not pleadable as a defense to an indictment charging a felony.

2. Evidence; Hearsay.—A question as to what a witness' brother had come to testify to, called for purely hearsay evidence, as well as a conclusion as to the uncommunicated motives or intention of another.

3. Appeal and Error; Harmless Error; Eridence.-Where a defendant was permitted without contradiction to testify as to his weight, any error in sustaining an objection to a question as to how much a witness would say that defendant weighed was harmless.

2-Vol 9

[Tarver v. The State.]

4. Witnesses; Examination; Scope.-A question to a witness on cross-examination "don't you do all the swearing?" was beyond the scope of cross-examination and properly refused.

5. Charge of Court; Defining Elements.-Where the state confessed defendant's plea of former jeopardy as to all misdemeanor charges embraced in the indictment, and conceded that defendant should be acquitted if not found guilty of a felony charge, and insisted only on a conviction for the felony, and the court so charged the jury, there was no error in refusing to define the constituent elements of the misdemeanor offenses embraced in the general terms of the indictment.

6. Homicide; Self Defense.-A charge upon self defense which fails to set out the elements constituting it, submits a question of law to the jury, and was properly refused.

APPEAL from Montgomery City Court.
Heard before Hon. ARMSTEAD BROWN.

Bernard Tarver was convicted of assault with intent to murder, and he appeals. Affirmed.

The defendant interposed a plea setting up that he was charged and tried in the recorder's court of the city of Montgomery for an assault and battery on one S. Franco; that he was convicted and had discharged the sentence; that the recorder had full and complete jurisdiction of such offense, and of the person of the defendant; and it is alleged that the said prosecution and conviction was based upon and is of the same matters and transaction as is alleged in this indictment or prosecution.

L. A. SANDERSON, for appellant. The court erred in sustaining demurrers to the plea of former jeopardy, and in refusing the affirmative charge.-Moore v. State, 71 Ala. 307; Storrs v. State, 129 Ala. 101; State v. Blevins, 134 Ala. 213; Jackson v. State, 33 South. 888; Brooks v. State, 46 South. 491; Dowling v. City of Troy, 56 South. 116; Sec. 1221, Code 1907. Counsel discuss the charges refused, and the evidence admitted and excluded, but without further citation of authority.