SOMEBYILLE, J.
— 1. It was not permissible to corroborate the witness Joe Fallin, by showing that he had made similar statements before the probate judge, or a justice of [8]*8the peace, on a former occasion. Testimony of this kind is hearsay, and not admissible. — Nichols v. Stewart, 20 Ala. 358; 1 Greenl. Ev. (14th Ed.) § 469; Com. v. James, 99 Mass. 438.
2. The second, third and fourth charges, requested by the defendant, were properly refused, on the ground that they all ignored any question as to the practicability of retreat; which duty devolved on. defendant, in case of his being able to do so safely, and without being put to disadvantage. The third and fourth charges also preclude any inquiry, as to who was in fault in bringing on the difficulty.
3. The first charge authorized, and even required the jury, to acquit the defendant of murder in the second degree, unless the killing was willful and premeditated. This charge was clearly erroneous, and was properly refused. If the killing was unlawful, and with malice aforethought, the jury could properly convict of any degree of homicide, less than murder in the first degree.
4. The judgment must be reversed, however, for the error committed in giving the last charge requested by the State, which asserted that “the law presumes that, when one man kills another, without excuse or justification, the killing was done deliberately and maliciously.” As one man may kill another, without excuse or justification, and yet be guilty of manslaughter, and manslaughter involves neither the element of deliberation nor malice, the error of the charge is ajjparent;
The third charge given at the request of the State need not be discussed, as it relates to murder in the first degree, and will not arise again, as the present conviction, which is for murder in the second degree, upon proper plea filed, must be adjudged to be an acquittal of murder in the first degree upon another trial.
The judgment is reversed, and the cause remanded. The prisoner, in the meanwhile, will be held in custody until discharged by due course of law.
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