GARDNER, J.
Defendant was indicted and tried for the murder of one Monroe Butts, was convicted of murder in the second degree, and sentenced to imprisonment for the period of 25 years.
(1, 2) There was no- error in overruling the motion to quash the venire, nor was there any .error in denying, the motion for continuance on the ground that some of the jurors were not served.—Acts 1909, p. 812, § 17.
(3) The other grounds for continuance were clearly matters resting largely in the sound discretion of the court, and no abuse of this discretion is shown.
(4) At the time defendant offered proof of threats made by deceased against him there was no proof tending to show self-defense, and therefore the court below cannot be held to have committed error in sustaining the objection to the same at that stage of the trial.—Rutledge v. State, 88 Ala. 85, 7 South. 335; Turner v. State, 160 Ala. 40, 49 South. 828; Robinson v. State, 155 Ala. 67, 45 South. 916; Beasley v. State, 181 Ala. 28, 61 South. 259.
(5) The killing occurred in the streets of Cordova about midnight, and the theory of the defendant was that he acted in self-defense. Testimony was offered by the state to show a previous difficulty between the par[25]*25ties, down in front of the New Hotel. Witness Miller places the time at 11:30 o’clock, and the proof seems to show without dispute that the shooting of the deceased took place just after 12 o’clock; hut the witness Miller subsequently states that the previous difficulty was 10 or 15 minutes before the shooting. However this may be, it appears without conflict that the fatal difficulty was not in any sense a mere continuation of the previous difficulty, and such previous difficulty, under the facts in this record, could not be said to be a part of the res gestae of the killing. The deceased left the hotel and went to the depot, and the defendant also left the hotel, and went to a stable some distance off, waked the man at the stable, and had him hitch a horse to a buggy and drive him around without giving any direction as to where to drive. •
The fact that the parties had a previous difficulty was, of course, admissible. It was also admissible to show any threats made by either party at the time. Therefore that portion of the evidence which related to statements made at the time of the previous difficulty, which may reasonably be construed as threats against or challenges to deceased, was admissible.
Speaking to this question, it was said by Stone, J., in Mc Anally v. State, 74 Ala. 9 : “In such case it is the fact of such difficulty, and its gravity, or the contrary, which may be proven. Its merits, or the particulars, cannot be given in evidence. If they were, the tendency would be to divert the minds of the jurors from the issue they are impaneled to try to the merits of the former quarrel. Too much latitude was allowed in this case. Nothing should have been received which tends to show who was in fault in the former difficulty.”
“While the particulars or merits of a previous difficulty cannot be inquired into, the fact of such difficulty, [26]*26and the threats accompanying it, may be proved for the purpose of showing malice, or a motive for doing the deed.”—Lawrence v. State, 84 Ala. 424, 5 South. 33; Rutledge v. State, 88 Ala. 85, 7 South. 335; Patterson v. State, 156 Ala. 62, 47 South. 52; Robinson v. State, 155 Ala. 67, 45 South. 916; Wells v. State, 187 Ala. 1, 65 South. 950.
In this case the state did not stop at the proof of the former difficulty, and of the statements which may reasonably be construed as threats or challenges, but, over the objection of the defendant, was permitted to prove, its seems, all that took place there at the hotel.
After the above testimony, which, as we have stated, was admissible, had been brought out, the state asked the witness Miller: “At the time you were down there in front of the hotel, state whether or not Mr. Butts had threatened to arrest the defendant; if so, state what Mr. Richardson was doing, and what Mr. Butts said to him.”
There was timely objection by the defendant. The answer of the witness to this question discloses how the conversation arose, and that defendant made use of an oath; in fact, details of what was said and done by the parties at the time. The proof that was made that deceased was night marshal of the town, and the detailed version of the previous difficulty by the witness Miller would seem to tend to show that deceased was in the discharge of his duty at that time, and in short, was not at fault. As previously stated, it cannot be, and is not, insisted that this was a part of the res gestee of the fatal difficulty. Too much latitude was therefore allowed the state in the introduction of the details of what occurred at the hotel. Motion was made to exclude that portion of the evidence above referred to, which motion the court overruled. We are of the opinion that this was [27]*27error to a reversal. The rule against the admission of -such details has been established in this court.since its early history, and has not been disturbed or shaken by subsequent decisions.
(6) Nor do we think that the instruction of the court to the jury as to the previous difficulty saves the cause from a reversal.' By the instruction the detailed evidence still remained before the jury, but only with certain limitations. As previously stated, the rule against the introduction of the details of a former difficulty has long been established in this jurisdiction; and a question of evidence is regarded as affecting substantial rights of the defendant. We are therefore of the opinion that the provisions of rule 45 of this court (175 Ala. xxi, 61 South, ix) do not save the cause from reversal.
As the cause must be reversed for this error, it is unnecessary to treat in detail other questions presented.
(7-10) We will add, in a general way, that it was clearly relevant for the state to show that the defendant flashed his flashlight on passers-by, when in the buggy in the streets of Cordova, as the theory of the state evidently was that the defendant was then in search of deceased; and the evidence offered to show flight was also unobjectionable, as well as that elicited by the state from the defendant, to the same effect, on his cross-examination. We are further of the opinion that, in view of all the evidence and of the fact that deceased was armed, and with due regard to the insistence of defendant as to who was the aggressor, etc., it was not improper to show that deceased was night marshal of Cordova; nor do we see any merit in the objection to the introduction of the clothes deceased had on at the time he was shot.
(11) The'refused charges need no detailed treatment, gome were properly refused as being incorrect. Charge [28]*287 makes use of the word “supposition,” and this court has in a very recent case condemned the charge.—McCoy v. State, 170 Ala. 10, 54 South. 428.
(12) A number of other charges were refused because covered by charges given.
(13) We call the attention of the trial court to the refusal of charge 4, however, as this charge has been approved by this court as here presented.—
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GARDNER, J.
Defendant was indicted and tried for the murder of one Monroe Butts, was convicted of murder in the second degree, and sentenced to imprisonment for the period of 25 years.
(1, 2) There was no- error in overruling the motion to quash the venire, nor was there any .error in denying, the motion for continuance on the ground that some of the jurors were not served.—Acts 1909, p. 812, § 17.
(3) The other grounds for continuance were clearly matters resting largely in the sound discretion of the court, and no abuse of this discretion is shown.
(4) At the time defendant offered proof of threats made by deceased against him there was no proof tending to show self-defense, and therefore the court below cannot be held to have committed error in sustaining the objection to the same at that stage of the trial.—Rutledge v. State, 88 Ala. 85, 7 South. 335; Turner v. State, 160 Ala. 40, 49 South. 828; Robinson v. State, 155 Ala. 67, 45 South. 916; Beasley v. State, 181 Ala. 28, 61 South. 259.
(5) The killing occurred in the streets of Cordova about midnight, and the theory of the defendant was that he acted in self-defense. Testimony was offered by the state to show a previous difficulty between the par[25]*25ties, down in front of the New Hotel. Witness Miller places the time at 11:30 o’clock, and the proof seems to show without dispute that the shooting of the deceased took place just after 12 o’clock; hut the witness Miller subsequently states that the previous difficulty was 10 or 15 minutes before the shooting. However this may be, it appears without conflict that the fatal difficulty was not in any sense a mere continuation of the previous difficulty, and such previous difficulty, under the facts in this record, could not be said to be a part of the res gestae of the killing. The deceased left the hotel and went to the depot, and the defendant also left the hotel, and went to a stable some distance off, waked the man at the stable, and had him hitch a horse to a buggy and drive him around without giving any direction as to where to drive. •
The fact that the parties had a previous difficulty was, of course, admissible. It was also admissible to show any threats made by either party at the time. Therefore that portion of the evidence which related to statements made at the time of the previous difficulty, which may reasonably be construed as threats against or challenges to deceased, was admissible.
Speaking to this question, it was said by Stone, J., in Mc Anally v. State, 74 Ala. 9 : “In such case it is the fact of such difficulty, and its gravity, or the contrary, which may be proven. Its merits, or the particulars, cannot be given in evidence. If they were, the tendency would be to divert the minds of the jurors from the issue they are impaneled to try to the merits of the former quarrel. Too much latitude was allowed in this case. Nothing should have been received which tends to show who was in fault in the former difficulty.”
“While the particulars or merits of a previous difficulty cannot be inquired into, the fact of such difficulty, [26]*26and the threats accompanying it, may be proved for the purpose of showing malice, or a motive for doing the deed.”—Lawrence v. State, 84 Ala. 424, 5 South. 33; Rutledge v. State, 88 Ala. 85, 7 South. 335; Patterson v. State, 156 Ala. 62, 47 South. 52; Robinson v. State, 155 Ala. 67, 45 South. 916; Wells v. State, 187 Ala. 1, 65 South. 950.
In this case the state did not stop at the proof of the former difficulty, and of the statements which may reasonably be construed as threats or challenges, but, over the objection of the defendant, was permitted to prove, its seems, all that took place there at the hotel.
After the above testimony, which, as we have stated, was admissible, had been brought out, the state asked the witness Miller: “At the time you were down there in front of the hotel, state whether or not Mr. Butts had threatened to arrest the defendant; if so, state what Mr. Richardson was doing, and what Mr. Butts said to him.”
There was timely objection by the defendant. The answer of the witness to this question discloses how the conversation arose, and that defendant made use of an oath; in fact, details of what was said and done by the parties at the time. The proof that was made that deceased was night marshal of the town, and the detailed version of the previous difficulty by the witness Miller would seem to tend to show that deceased was in the discharge of his duty at that time, and in short, was not at fault. As previously stated, it cannot be, and is not, insisted that this was a part of the res gestee of the fatal difficulty. Too much latitude was therefore allowed the state in the introduction of the details of what occurred at the hotel. Motion was made to exclude that portion of the evidence above referred to, which motion the court overruled. We are of the opinion that this was [27]*27error to a reversal. The rule against the admission of -such details has been established in this court.since its early history, and has not been disturbed or shaken by subsequent decisions.
(6) Nor do we think that the instruction of the court to the jury as to the previous difficulty saves the cause from a reversal.' By the instruction the detailed evidence still remained before the jury, but only with certain limitations. As previously stated, the rule against the introduction of the details of a former difficulty has long been established in this jurisdiction; and a question of evidence is regarded as affecting substantial rights of the defendant. We are therefore of the opinion that the provisions of rule 45 of this court (175 Ala. xxi, 61 South, ix) do not save the cause from reversal.
As the cause must be reversed for this error, it is unnecessary to treat in detail other questions presented.
(7-10) We will add, in a general way, that it was clearly relevant for the state to show that the defendant flashed his flashlight on passers-by, when in the buggy in the streets of Cordova, as the theory of the state evidently was that the defendant was then in search of deceased; and the evidence offered to show flight was also unobjectionable, as well as that elicited by the state from the defendant, to the same effect, on his cross-examination. We are further of the opinion that, in view of all the evidence and of the fact that deceased was armed, and with due regard to the insistence of defendant as to who was the aggressor, etc., it was not improper to show that deceased was night marshal of Cordova; nor do we see any merit in the objection to the introduction of the clothes deceased had on at the time he was shot.
(11) The'refused charges need no detailed treatment, gome were properly refused as being incorrect. Charge [28]*287 makes use of the word “supposition,” and this court has in a very recent case condemned the charge.—McCoy v. State, 170 Ala. 10, 54 South. 428.
(12) A number of other charges were refused because covered by charges given.
(13) We call the attention of the trial court to the refusal of charge 4, however, as this charge has been approved by this court as here presented.—Bluitt v. State, 161 Ala. 14, 49 South. 854; Bluett v. State, 151 Ala. 41, 44 South. 84.
We do not deem it necessary, in view of another trial of the cause, to determine whether the substance of this charge was given by the court to the jury, but we have thought it proper to direct attention to the above authorities, approving the charge as here presented. The defendant himself had testified to threats made by the deceased.
While the writer of this opinion (expressing his views only) may entertain some doubt as to whether or not the refusal of a charge so worded and punctuated as charge 4 should be held reversible error, yet there is no occasion here to enter into a consideration of such doubt, or of any reasons therefor.
For the errors indicated, the judgment of the court below must be reversed, and the cause remanded. The defendant will remain in custody until discharged by due course of law.
Reversed and remanded.
Anders'on, C. J., and McClellan and Sayre, JJ., concur.