HARALSON, J.
1. It is the settled rule of this court, that a defendant cannot be lawfully punished for two distinct felonies, growing out of the same identical act, and where one is a necessary ingredient of the other ; that a series of charges cannot be based upon the same offense, and subdivided into two or more indictable crimes. So, it has been held, that where the same act of unlawful shooting resulted in the death of two persons, an acquittal or conviction on the trial of one would be a good defense on a second trial for'the alleged murder of the other, for the reason that the killing Constituted but one crime, which could not be subdivided and [26]*26made the basis of two prosecutions. — Clem v. The State, 42 Ind. 420. And again, where one blow produces two separate assaults and batteries on two different persons, a conviction of one may be pleaded in bar to an indictment for the other, for the reason that the defendant cannot be punished for two distinct assaults growing out of the same identical act. — State v. Damon, 2 Tyler (Vt.) 387; State v. Cooper, 1 Green. (N. J.) 361. These cases and the principles announced, were referred to and approved in Hurst v. The State, 86 Ala. 604, where the same question was considered and decided by this court upon a careful review of many authorities. Hurst was indicted, tried and convicted for having introduced a file into the county jail, with the intent to facilitate the escape of a prisoner, confined onacliarge of misdemeanor. At the same term of the court, defendant was indicted, tried and convicted, for the same act of conveying into the county jail the same file with which to facilitate the escape of another pi’isoner, confined on a charge of a felony, and it was held, on a plea of autrefois convict, that the first conviction was a'bar to the indictment in the latter case. — O’Brien v. The State, 91 Ala. 25; Moore v. The State, 71 Ala. 307; Gordon v. The State, 71 Ala. 317.
It must not be overlooked, however, that the same individual may, at the time and in the same transaction commit two or more distinct criminal offenses, and the acquittal of one will not bar punishment for the other, as if in the same affray, one person shoots and kills one person, and by a second act shoots and wounds another. In such case, the two-results, the killing of the one and the wounding of the other, by different acts of shooting, cannot be said to grow out of the same unlawful act, but out of two distinct acts, and the party shooting is responsible for the two results from the two separate acts, and may be indicted and punished separately for each. The State v. Standifer, 5 Port. 523; Cheek v. The State, 38 Ala. 231, and authorities supra.
The plea in this case sets up that the defendant was indicted for the murder of George Breazle, and that he was tried and acquitted therefor. Among other facts pleaded it is stated : “And the said defendant says, that he is in fact, that he was so indicted and. acquitted as aforesaid, is one and the same person, and that the assault and murder of which he, the said Robert Gunter, [27]*27was so indicted and acquitted as aforesaid, and the assault with intent to commit murder of and for which defendant is now indicted are one and the same assault, and committed at one and the same time ; that the killing of said Breazle took place under the same prosecution, and not other and different assaults, for other and different prosecutions, but that it was one transaction committed at one and the same time,” &c. The above is a loose and very unskillful averment, if that was the intention, of the identity of the act by which th.9 killing of the one and the wounding of the other person was effected. It speaks of two assaults, the death of one person following the one, and the wounding of another, following the other, and avers that they are one and the same assault * * * * under one and the same prosecution, and not other and different assaults for other and different prosecutions, that it was one transaction, committed at one and the same time. This would seem to be the averment of a legal conclusion, rather than of a fact — an averment that the assaults were one, in the sense that for them different prosecutions could not be maintained. If there had been but one pistol shot fired by defendant, which struck two men, killing one and wounding the other, it would have been an easy matter to so aver, but there is an apparent cautious omission of such an averment, and to substitute for it the nearest approach that the pleader could make to it — an allegation of a conclusion, the main fact to be taken as a matter of inference, rather than from positive averment. Construing the plea most strongly against the pleader, we hold it was insufficient and subject to demurrer.
2. The party assaulted, Debtor, had testified that the defendant shot him without any cause or provocation, and that he and defendant had always been friends. Defendant’s counsel then asked the witness : “Pistol must have gone off accidentally then?” This question was properly disallowed. It was a jeer, implying falsehood to the witness, and if answered would have been the mere conclusion of the witness, as would have been the answer to the next question, which the court ruled to be improper: “Will you tell the -jury whether the shooting was accidental?”
There was no error in allowing the witness to state [28]*28that he was about eighteen years old at the time he was shot. This was a pertinent inquiry as tending to show the relative conditions of the parties at the time of the assault.. — Commonwealth v. Selfridge, (Mass.) Cases of Self Defense, p. 3.
3. The witness, Thompson, for defense, had examined the- body of Breazle, after he was shot. He was asked on cross-examination by the State’s solicitor, to state where the wound was. The witness stated that he had a wound hole in his back, and pointed out on the back of the solicitor where the wound was on the deceased. The defendant objected to this evidence separately, but specified no grounds of objection. The objections were properly overruled for want of specific objections, and because the evidence tended to corroborate the evidence of Debtor, that Breazle was shot in the back, while making no demonstration against the defendant. The person of the solicitor, standing up, was an unobjectionable illustration, in locating on his back, where the wound was on the dead man.
4. The witness, Thompson, was also asked to state, “Whether or not about this time (August, 1891) George Breazle bought a knife, and if you heard him say what he was going to do with it?” He replied, “that lie sold Breazle a knife, and saw him, Breazle, try to cut defendant.” The State objected to the question and answer, and the court excluded the latter part' of it as to witness having seen Breazle try to cut - defendant with it. There was no error in excluding that part of the answer, as the whole of.it was Irrelevant, and the part excluded, even if a former difficulty had been relevant, went into the particulars of such difficulty. But what such a transaction as that called for, in August, 1891, between defendant and Breazle had to do with the difficulty between defendant and Debtor in December, 1891, does not appear and is difficult to conceive.
5. The witness for the defense, Steve Gunter, testified that defendant lived in his house and was at home the night before the killing took place.
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HARALSON, J.
1. It is the settled rule of this court, that a defendant cannot be lawfully punished for two distinct felonies, growing out of the same identical act, and where one is a necessary ingredient of the other ; that a series of charges cannot be based upon the same offense, and subdivided into two or more indictable crimes. So, it has been held, that where the same act of unlawful shooting resulted in the death of two persons, an acquittal or conviction on the trial of one would be a good defense on a second trial for'the alleged murder of the other, for the reason that the killing Constituted but one crime, which could not be subdivided and [26]*26made the basis of two prosecutions. — Clem v. The State, 42 Ind. 420. And again, where one blow produces two separate assaults and batteries on two different persons, a conviction of one may be pleaded in bar to an indictment for the other, for the reason that the defendant cannot be punished for two distinct assaults growing out of the same identical act. — State v. Damon, 2 Tyler (Vt.) 387; State v. Cooper, 1 Green. (N. J.) 361. These cases and the principles announced, were referred to and approved in Hurst v. The State, 86 Ala. 604, where the same question was considered and decided by this court upon a careful review of many authorities. Hurst was indicted, tried and convicted for having introduced a file into the county jail, with the intent to facilitate the escape of a prisoner, confined onacliarge of misdemeanor. At the same term of the court, defendant was indicted, tried and convicted, for the same act of conveying into the county jail the same file with which to facilitate the escape of another pi’isoner, confined on a charge of a felony, and it was held, on a plea of autrefois convict, that the first conviction was a'bar to the indictment in the latter case. — O’Brien v. The State, 91 Ala. 25; Moore v. The State, 71 Ala. 307; Gordon v. The State, 71 Ala. 317.
It must not be overlooked, however, that the same individual may, at the time and in the same transaction commit two or more distinct criminal offenses, and the acquittal of one will not bar punishment for the other, as if in the same affray, one person shoots and kills one person, and by a second act shoots and wounds another. In such case, the two-results, the killing of the one and the wounding of the other, by different acts of shooting, cannot be said to grow out of the same unlawful act, but out of two distinct acts, and the party shooting is responsible for the two results from the two separate acts, and may be indicted and punished separately for each. The State v. Standifer, 5 Port. 523; Cheek v. The State, 38 Ala. 231, and authorities supra.
The plea in this case sets up that the defendant was indicted for the murder of George Breazle, and that he was tried and acquitted therefor. Among other facts pleaded it is stated : “And the said defendant says, that he is in fact, that he was so indicted and. acquitted as aforesaid, is one and the same person, and that the assault and murder of which he, the said Robert Gunter, [27]*27was so indicted and acquitted as aforesaid, and the assault with intent to commit murder of and for which defendant is now indicted are one and the same assault, and committed at one and the same time ; that the killing of said Breazle took place under the same prosecution, and not other and different assaults, for other and different prosecutions, but that it was one transaction committed at one and the same time,” &c. The above is a loose and very unskillful averment, if that was the intention, of the identity of the act by which th.9 killing of the one and the wounding of the other person was effected. It speaks of two assaults, the death of one person following the one, and the wounding of another, following the other, and avers that they are one and the same assault * * * * under one and the same prosecution, and not other and different assaults for other and different prosecutions, that it was one transaction, committed at one and the same time. This would seem to be the averment of a legal conclusion, rather than of a fact — an averment that the assaults were one, in the sense that for them different prosecutions could not be maintained. If there had been but one pistol shot fired by defendant, which struck two men, killing one and wounding the other, it would have been an easy matter to so aver, but there is an apparent cautious omission of such an averment, and to substitute for it the nearest approach that the pleader could make to it — an allegation of a conclusion, the main fact to be taken as a matter of inference, rather than from positive averment. Construing the plea most strongly against the pleader, we hold it was insufficient and subject to demurrer.
2. The party assaulted, Debtor, had testified that the defendant shot him without any cause or provocation, and that he and defendant had always been friends. Defendant’s counsel then asked the witness : “Pistol must have gone off accidentally then?” This question was properly disallowed. It was a jeer, implying falsehood to the witness, and if answered would have been the mere conclusion of the witness, as would have been the answer to the next question, which the court ruled to be improper: “Will you tell the -jury whether the shooting was accidental?”
There was no error in allowing the witness to state [28]*28that he was about eighteen years old at the time he was shot. This was a pertinent inquiry as tending to show the relative conditions of the parties at the time of the assault.. — Commonwealth v. Selfridge, (Mass.) Cases of Self Defense, p. 3.
3. The witness, Thompson, for defense, had examined the- body of Breazle, after he was shot. He was asked on cross-examination by the State’s solicitor, to state where the wound was. The witness stated that he had a wound hole in his back, and pointed out on the back of the solicitor where the wound was on the deceased. The defendant objected to this evidence separately, but specified no grounds of objection. The objections were properly overruled for want of specific objections, and because the evidence tended to corroborate the evidence of Debtor, that Breazle was shot in the back, while making no demonstration against the defendant. The person of the solicitor, standing up, was an unobjectionable illustration, in locating on his back, where the wound was on the dead man.
4. The witness, Thompson, was also asked to state, “Whether or not about this time (August, 1891) George Breazle bought a knife, and if you heard him say what he was going to do with it?” He replied, “that lie sold Breazle a knife, and saw him, Breazle, try to cut defendant.” The State objected to the question and answer, and the court excluded the latter part' of it as to witness having seen Breazle try to cut - defendant with it. There was no error in excluding that part of the answer, as the whole of.it was Irrelevant, and the part excluded, even if a former difficulty had been relevant, went into the particulars of such difficulty. But what such a transaction as that called for, in August, 1891, between defendant and Breazle had to do with the difficulty between defendant and Debtor in December, 1891, does not appear and is difficult to conceive.
5. The witness for the defense, Steve Gunter, testified that defendant lived in his house and was at home the night before the killing took place. Defendant’s counsel asked the witness to “State whether or not these men, Debtor and Breazle, waylaid your house the preceding night, and how you knew it?” The court, on the objection of the solicitor, excluded the evidence. The question called for a fact within the knowledge of the [29]*29witness. Debtor had testified he was shot by defendant without cause or provocation, was unarmed and doing nothing at the time. The evidence for the defense tended to show, that Breazle and Debtor, just beforethe killing, on their way to the store where it occurred, threatened to kill defendant, which threat was communicated to defendant immediately afterwards. The evidence for the defense also tended to show, that both these parties, just after their threat to kill defendant, went to his store, armed with pistols, and stood in the side door, opposite to where defendant was standing; that Breazle said to Debtor, “If you are going to do that dancing, it is time you were at it,” to which Debtor replied, “I am ready;” that Breazle presented the pistol at defendant and fired, after which defendant shot him, .and then, immediately, shot Debtor. Under these circumstances, we think the fact, if it were true, that these two men, the preceeding night, waylaid the house where defendant lived, was admissible on the several grounds, as tending to show their motive in going to defendant’s store; was corroborative of their communicated threats to kill defendant, and to aid the jury in determining the question about which there was conflicting evidence, as to who was the aggressor. The evidence stands, as to such matters and for such purposes, upon the same footing as threats whether communicated or not. — Roberts v. The State, 68 Ala. 156; Clarke v. The State, 78 Ala. 477; 3 Brick. Dig. 289, § 627.
For the error in excluding this evidence, the case must be reversed.
Reversed and remanded.