ANDERSON, J.
— The plea of former conviction does not aver that the first conviction was by a court of competent jurisdiction. It avers that the conviction was .at a time fixed by the “Luslc Bill,” which has heretofore been condemned by this court, and at a time not [572]*572provided by law for holding the circuit court for Cull-man county. Nor does it aver that, the defendant was tried at an adjourned or special term of the court. The demurrer to the plea was properly sustained.
The court did not err in putting the juror Styles on the defendant. The fact that he would not convict on circumstantial evidence was a ground of challenge exclusively to the state.— Code 1896, § 5018. Defendant cannot complain of the state’s waiving snch a ground of challenge. —Wesley v. State, 61 Ala. 282. Subdivision 3 of section 5016 of the Code of 1896 fixes, among the grounds of challenge for cause, the fact that the juror ‘has been indicted in the past twelve months for an offense of a similar character as that with which the defendant is charged.” The court, therefore, had the right to ask the juror if he had been indicted for murder, but should have confined the inquiry to the past 12 months. The court, however, committed no reversible error in this respect, as the record does not show that the juror was put upon the defendant, or that he was challenged by the state for cause. For aught we know, he may have been peremptorily challenged by the state. Nor did the court err in refusing to ask the the juror if he had been indicted for murder in the past 12 months, as requested to do so by defendant’s counsel. He had just testified that he had never been indicted, which was a complete answer to the question the trial court declined to ask.
The state had the right to show that defendant killed deceased with a pistol, which he had concealed before the difficulty, as there was evidence that defendant was the assailant and that the deceased had no deadly weapon drawn. — § 4856 of the Code of 1896. It is true the Code prescribes a sperate form for charging murder in the second degree under this statute; but we do not understand that the state is precluded, under an indictment for murder in the first degree, from showing facts which would prove the offense as charged, or any lower degree in said offense. The case of Henson v. State, 114 Ala. 25, 22 South. 127, is not against the foregoing proposition. There the defendant was indicted for manslaughter in the first degree, and could not- have been convicted of murder under any conditions, and it was [573]*573immaterial whether the pistol was concealed or not. Here he wag indicted for murder in the first degree, and could be convicted for any lower degree of homicide, and the state had the right to make out a case of murder in the second degree, whether under said statute or not.
As to statements made to the physician by a party who is the subject of the inquiry, the rule of exclusion extends as to declarations of its cause, or the way in which it occurred; these being regarded as mere narratives of past events, which must be proved by other and independent evidence. But, from the necessity of the cause, he may testify to the party’s statements as to his symptoms, the locality and character of the pain, and give an explanation of his bodily condition, made while suffering, and for the purpose of enabling the physician to form an opinion of the nature and extent of the injury. —Birmingham Union R. R. Co. v. Hale, 90 Ala. 8, 8 South. 142, 24 Am. St. Rep. 748; Eckles v. Bates, 26 Ala. 655; Roosa v. Boston Land Co., 132 Mass. 439; Cent. R. R. Co. v. Button, 42 111. 438, 92 Am. Dec. 81. There Avas no error in permitting the physician to testify wliat- the deceased said as to the feeling and condition of his stomach and legs.
The trial court did not commit reversible error in not alloAving the defendant to prove by young Mann that he had trouble Avith defendant’s children the day of the killing. It is true that, when a witness testifies against another, it is proper to permit testimony that would show hostility on the part of the witness towards the party against whom he has testified. But whether the rule should extend to trouble the witness had Avith defendant’s children three years previous to the time of swearing we need not decide, for we think that this is a question that Avould come under the province of section 4333 of the Code of 1896, and that defendant was not injured by not getting an affirmative answer to the question. The jury knew that the witness was a son of the deceased, and the fact that he had trouble with the children could not have added in the’least to the bias growing out of his relationship to the parties. Nor was there error in not permitting the question as to throwing rocks.—Gregory v. State, 140 Ala. 27, 37 South. 259.
[574]*574A sufficient predicate was laid for the dying declaration of the deceased.
The trial court will not he reversed for sustaining an objection to the question, by defendant to witness McConnell, ‘if he was as certain as he was of everything else he testified about.” This court has tolerated such a question in the case of Railway vo. v. Edmondson, 135 Ala. 337, 33 South. 480, by holding that such a question may be asked, and that the trial court will not be reversed for permitting it, but did not hold that the trial court would be reversed for refusing to permit the question. We do not approve of that mariner of cross-examination, to the extent of putting the trial court in error for not permitting it. Moreover, upon cross-examination, much is left to the trial court as to the latitude and range to test the sincerity and recollection of the witness.
There was no error in permitting the witness Patillo to testify that he helped carry Mann to his home.
There was no error in permitting the witness Norris to testify that, he did not go with Tom'Johnson and Howard Mann across old man Gregory’s field the evening after the difficulty. Lola Gregory had testified that deceased threw the pistol in the field, and she saw these parties go over there that evening; the inference being that they went to get it. The state then had the right to show that they did not go through said field that evening or the next morning.
The defendant objected to the argument of the solicitor that deceased and his children were on their way to a Christmas tree when the difficulty occurred, because there was no< evidence to support it. There was evidence to support it. Deceased’s dying declaration, made to Patillo, stated that he was taking his two little boys to the Christmas tree. There was also evidence that the defendant mistreated his father, contained in the letter written by the deceased, and which the defendant introduced in evidence.
Charge 1, given at the request of the state, was not good under the statute, it does not comply with the statute. —§ 4856 of the Code of 1896. It pretermits the defendant having been the “assailant.” True, it requires that he must have caused the difficulty; but that is not [575]*575sufficient to charge him with being the assailant. One may canse a difficulty, and yet not be the assailant. Our court, in the case of Scales v. State, 96 Ala. 75, 11 South. 121, defines “assailant,” as used in the statute, to be one who “assails or assaults; the aggressor.” One may provoke or cause a difficulty, yet at the time of its occurrence not be the assailant.
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ANDERSON, J.
— The plea of former conviction does not aver that the first conviction was by a court of competent jurisdiction. It avers that the conviction was .at a time fixed by the “Luslc Bill,” which has heretofore been condemned by this court, and at a time not [572]*572provided by law for holding the circuit court for Cull-man county. Nor does it aver that, the defendant was tried at an adjourned or special term of the court. The demurrer to the plea was properly sustained.
The court did not err in putting the juror Styles on the defendant. The fact that he would not convict on circumstantial evidence was a ground of challenge exclusively to the state.— Code 1896, § 5018. Defendant cannot complain of the state’s waiving snch a ground of challenge. —Wesley v. State, 61 Ala. 282. Subdivision 3 of section 5016 of the Code of 1896 fixes, among the grounds of challenge for cause, the fact that the juror ‘has been indicted in the past twelve months for an offense of a similar character as that with which the defendant is charged.” The court, therefore, had the right to ask the juror if he had been indicted for murder, but should have confined the inquiry to the past 12 months. The court, however, committed no reversible error in this respect, as the record does not show that the juror was put upon the defendant, or that he was challenged by the state for cause. For aught we know, he may have been peremptorily challenged by the state. Nor did the court err in refusing to ask the the juror if he had been indicted for murder in the past 12 months, as requested to do so by defendant’s counsel. He had just testified that he had never been indicted, which was a complete answer to the question the trial court declined to ask.
The state had the right to show that defendant killed deceased with a pistol, which he had concealed before the difficulty, as there was evidence that defendant was the assailant and that the deceased had no deadly weapon drawn. — § 4856 of the Code of 1896. It is true the Code prescribes a sperate form for charging murder in the second degree under this statute; but we do not understand that the state is precluded, under an indictment for murder in the first degree, from showing facts which would prove the offense as charged, or any lower degree in said offense. The case of Henson v. State, 114 Ala. 25, 22 South. 127, is not against the foregoing proposition. There the defendant was indicted for manslaughter in the first degree, and could not- have been convicted of murder under any conditions, and it was [573]*573immaterial whether the pistol was concealed or not. Here he wag indicted for murder in the first degree, and could be convicted for any lower degree of homicide, and the state had the right to make out a case of murder in the second degree, whether under said statute or not.
As to statements made to the physician by a party who is the subject of the inquiry, the rule of exclusion extends as to declarations of its cause, or the way in which it occurred; these being regarded as mere narratives of past events, which must be proved by other and independent evidence. But, from the necessity of the cause, he may testify to the party’s statements as to his symptoms, the locality and character of the pain, and give an explanation of his bodily condition, made while suffering, and for the purpose of enabling the physician to form an opinion of the nature and extent of the injury. —Birmingham Union R. R. Co. v. Hale, 90 Ala. 8, 8 South. 142, 24 Am. St. Rep. 748; Eckles v. Bates, 26 Ala. 655; Roosa v. Boston Land Co., 132 Mass. 439; Cent. R. R. Co. v. Button, 42 111. 438, 92 Am. Dec. 81. There Avas no error in permitting the physician to testify wliat- the deceased said as to the feeling and condition of his stomach and legs.
The trial court did not commit reversible error in not alloAving the defendant to prove by young Mann that he had trouble Avith defendant’s children the day of the killing. It is true that, when a witness testifies against another, it is proper to permit testimony that would show hostility on the part of the witness towards the party against whom he has testified. But whether the rule should extend to trouble the witness had Avith defendant’s children three years previous to the time of swearing we need not decide, for we think that this is a question that Avould come under the province of section 4333 of the Code of 1896, and that defendant was not injured by not getting an affirmative answer to the question. The jury knew that the witness was a son of the deceased, and the fact that he had trouble with the children could not have added in the’least to the bias growing out of his relationship to the parties. Nor was there error in not permitting the question as to throwing rocks.—Gregory v. State, 140 Ala. 27, 37 South. 259.
[574]*574A sufficient predicate was laid for the dying declaration of the deceased.
The trial court will not he reversed for sustaining an objection to the question, by defendant to witness McConnell, ‘if he was as certain as he was of everything else he testified about.” This court has tolerated such a question in the case of Railway vo. v. Edmondson, 135 Ala. 337, 33 South. 480, by holding that such a question may be asked, and that the trial court will not be reversed for permitting it, but did not hold that the trial court would be reversed for refusing to permit the question. We do not approve of that mariner of cross-examination, to the extent of putting the trial court in error for not permitting it. Moreover, upon cross-examination, much is left to the trial court as to the latitude and range to test the sincerity and recollection of the witness.
There was no error in permitting the witness Patillo to testify that he helped carry Mann to his home.
There was no error in permitting the witness Norris to testify that, he did not go with Tom'Johnson and Howard Mann across old man Gregory’s field the evening after the difficulty. Lola Gregory had testified that deceased threw the pistol in the field, and she saw these parties go over there that evening; the inference being that they went to get it. The state then had the right to show that they did not go through said field that evening or the next morning.
The defendant objected to the argument of the solicitor that deceased and his children were on their way to a Christmas tree when the difficulty occurred, because there was no< evidence to support it. There was evidence to support it. Deceased’s dying declaration, made to Patillo, stated that he was taking his two little boys to the Christmas tree. There was also evidence that the defendant mistreated his father, contained in the letter written by the deceased, and which the defendant introduced in evidence.
Charge 1, given at the request of the state, was not good under the statute, it does not comply with the statute. —§ 4856 of the Code of 1896. It pretermits the defendant having been the “assailant.” True, it requires that he must have caused the difficulty; but that is not [575]*575sufficient to charge him with being the assailant. One may canse a difficulty, and yet not be the assailant. Our court, in the case of Scales v. State, 96 Ala. 75, 11 South. 121, defines “assailant,” as used in the statute, to be one who “assails or assaults; the aggressor.” One may provoke or cause a difficulty, yet at the time of its occurrence not be the assailant. The charge, however, was good as to murder in the second degree, regardless of the statute, as it hypothesizes facts that would not reduce the killing below murder. —Scales’ Case, supra; Mitchell v. State, 60 Ala. 26; Ex parte Brown, 65 Ala. 446. So much of said charge as referred to murder in the first degree could do the defendant no harm, as he was acquitted of murder in the first degree.
There was no error in giving the other charges requested by the state.—Jackson v. State, 136 Ala. 22, 34 South. 188.
The record recites: “And upon said evidence, which is substantially all the evidence, the defendant requested the court in writing to give the jury the following written charges, to-wit.” And then follows the charges, and at the conclusion this recital is found: “And the court then and there refused to give each, any, and all of said charges, and the defendant then and there duly excepted to the action of the court separately as to each and all of said charges.” There is nothing to' show that the charges were separately asked or separately passed upon by the court. The record does recite that the court refused to give “each, any, and all of said charges,” and that defendant excepted separately to the court’s refusal to give the charges. The court may have refused each, any, and all of said charges because asked in bulk, and because one or more of them may havé been bad.— Verberg v. State, 137 Ala. 73, 34 South. 848, 97 Am. St. Rep. 17; Bell v. State, 140 Ala. 37, 37 South. 281; Glover v. State, 40 South. 354. It is sufficient to say that charge No. 1, refused to the defendant, was bad in failing to hypothesize the defendant’s duty to retreat, and, as it was bad, the court had the right to refuse them all; it not' appearing that they were separately asked.
The judgment of the circuit court is affirmed.
Tyson, C. J., and Dowdell and Simpson, JJ., concur.