SAYRE, J.
— Defendant was convicted of the murder of one Patterson, and sentenced to suffer death. At his trial defendant reserved a great number of exceptions to adverse rulings on questions of evidence. They have been duly considered, but it has been found unprofitable to state them severally, and impossible to do so within reasonable limits. We have, however, stated such of them as seem to involve questions of merit, and perhaps some besides.
Dr. Burns, a witness for the state, was permitted to give his opinion as to the caliber of the pistol ball which caused the death of deceased. This he appears to have done from an inspection of the fatal wound. He was a medical man of ample general experience, but his observation of things in more immediate point had been meager, and possibly his opinion in that particular was not of much moment; but if it be conceded that his qualification as an expert in the matter of calibers was unsatisfactory, still, considering that defendant did not deny that he had caused the death of deceased by shooting him with a pistol, it is not perceived how the doctor’s more intimate knowledge and better grounded judgment in the matter of wounds as demonstrating the caliber of the weapons by which they are inflicted could have been of any benefit to the defendant. In fact, the [19] progress of the case developed no real reason for the question about the size of the bullet. True, as suggested, a third person also received an unintentional wound, and, under the circumstances, the question whether his wound came from the weapon in the hand of defendant or that in the hand of deceased would have been of significance as tending to show that deceased fired a shot, which some of the testimony seemed to deny, and possibly, also, in one event as tending to show who fired the first shot; but on that inquiry the mere caliber of the weapon inflicting the wound upon deceased shed no light, nor, in view of the admitted facts, did it serve any other indispensable purpose of the defendant.
On consideration of the conditions shown to have existed at the time, a statement of which in full detail we will leave to the reporter, we are not willing to affirm reversible error of the trial court’s rulings in refusing to alloAv the witness Felix Walker to answer defendant’s question whether deceased could have seen defendant’s pistol. It -appeared throughout the casé that defendant and deceased had each made threats against the life of the other. Both Avere armed in anticipation of a meeting. Late in the afternoon before the killing, deceased, who was a police officer, had arrested defendant, and upon that occasion defendant had threatened the life of deceased. The testimony of this Avitness went to show that when the parties met some hours afterward, deceased, after demurring, had, on defendant’s invitation — made, it seems, in a friendly manner — gone around the corner into a place not so well lighted as the street from which they went, where defendant pulled up his coat, and, turning around, said to deceased, “You see I ain’t got any gun.” Defendant contends that his question, Avhich followed should have had an answer because, if in the affirmative, it would have supported [20] his insistence that as soon as deceased discovered that defendant was armed the former determined and attempted to kill, before the latter could get his pistol into action. There are cases which seem in principle to uphold the defendant so far as concerns the competency of the answer. — Cox v. State, 78 Ala. 66; E. T. V. & G. R. R. v. Watson, 90 Ala. 41, 7 South. 813; McVay v. State, 100 Ala. 110, 14 South. 862; A. G. S. R. R. v. Linn, 103 Ala. 134, 15 South. 508; Rollings v. State, 136 Ala. 126, 34 South. 349; Adler v. Pruitt, 169 Ala. 213, 53 South. 315, 32 L. R. A. (N. S.) 889. But in the present case it is certain that defendant had his weapon then on his person, though not in the hip pocket exhibited to deceased. The witness saw it, and the deceased no doubt saw it, for he said, “Yes, Jay, you have got a gun.” The evidence of this statement by the deceased was corroborated by the defendant. While it was a question for the jury whether deceased saw defendant’s weapon, and acted upon the idea suggested in argument, it is not perceived how proof of defendant’s failure to deceive deceased in respect to his possession of a weapon could have materially advanced the cause of the defense, or how the witness’ statement of his opinion, or shorthand rendering of the facts as it may be called, which, under the circumstances, was weak and inconclusive at best, could have materially affected the jury’s finding in the presence of abundant proof otherwise that deceased was aware of the fact that defendant was armed. We feel justified, therefore, in saying that this ruling was not error for which a reversal should be ordered.
The witness Kane was brought forward to prove threats made by defendant at the time of his arrest by deceased in the afternoon. This witness also testified to what deceased said to defendant at the same time. Later on, however, the court, responding to defendant’s [21] motion, ruled: “I exclude everything except what the defendant said.” Defendant complains in his brief that at several points the trial court adopted this method of curing errors. The practice has been regarded by this court as not to be commended, but the ruling in similar cases has been that an objection to testimony, erroneously admitted in the first instance, is not available on appeal, where the testimony is afterwards excluded with instructions to the jury not to regard it. — Jackson v. State, 94 Ala. 85, 10 South. 509; Green v. State, 96 Ala. 32, 11 South. 478. Here no such instruction was given. We feel constrained, however, to say that at this particular point no error is shown by the bill of exceptions. This court has heretofore adhered to a strict rule of exclusion in respect to the attendant circumstances of threats made previous to the occasion of the act charged. — Harkness v. State, 129 Ala. 71, 30 South. 73; Willingham v. State, 130 Ala. 35, 30 South. 429; May v. State, 167 Ala. 36, 52 South. 602. But it is evident that the strictness of the rule must of necessity be relaxed in some cases. — Linehan v. State, 113 Ala. 70, 21 South. 497; Gunter v. State, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17. It may happen that a threat will be conveyed by words which mean nothing without the surroundings. That a threat is coupled with a condition affects its weight, but not its admissibility (Cribbs v. State, 86 Ala. 613, 6 South. 109); and, we take it, the state may be allowed, without invading the rights of defendant, to show the meaning of the condition, where that does not appear on the face of the threat. To illustrate : Defendant, according to one witness, had said to deceased: “If you get in here, I will kill you.” It does not seem improper, certainly it contributes to an understanding of the true meaning of such an occasion, to show that deceased was trying to arrest defendant, [22] who was at the time in a buggy and starting to drive away. In this case, for anything appearing in the record, those details to which defendant objected, insignificant in themselves, were brought out by questions which should have put him on guard and should have evoked his objection; but objection was made only by motion to exclude after the matter had reached the jury. The charge of error cannot be sustained under these circumstances.
As for the details of the difficulty between defendant and the witness Kane, which gave occasion for the defendant’s arrest by deceased, they were not admissible over the defendant’s objection. But if defendant, conceiving that he might thereby get some credit with the jury, took the initiative in eliciting some part of them, he opened the door for the entire res gestas, lest the jury be misled by an incomplete or garbled version. The bill of exceptions states that the particulars to which defendant objected were admitted for the reason that defendant had drawn out other particulars. The bill is of difficult comprehension, but as well as we can understand it the court’s assigned reason was justified by the fact. In fact, as we read the transcript, defendant’s breach into the field of particulars was as wide as a church door, and the state had the right to go in through it. And as to much of it, particularly that part of it which defendant complains was most prejudicial to him as tending to create the impression that he had been concerned in “running a blind tiger,” at one point the defendant again waived objections by waiting to interpose them until the question had been answered. The question was general; but the answer was not irresponsive. This matter was calculated to prejudice the defendant, and the court might well have excluded it, but in the shape the matter took defendant waived his right [23] to have it excluded. — Liner v. State, 124 Ala. 1, 27 South. 438; Jarvis v. State, 138 Ala. 17, 34 South. 1025. At another point there was timely objection to the question, but no exception to the court’s ruling. For these reasons we are unable to hold consonantly with the rule heretofore followed in this court that reversible error intervened at this point.
After deceased had been shot he staggered and was helped into the drug store immediately at hand, where he died within a few minutes. As he lay upon the floor he said, “Boys, he has killed me.” Defendant excepted to the reproduction of this statement. The nature of his wound the form of his statement, and the absence of any expression of hope were sufficient to warrant an inference that deceased realized his condition and spoke under a sense of impending dissolution. In truth, the statement was nothing more than an expression of his appreciation of the fact that he was wounded to death. It gave no information as to the identity of his assailant, nor as to the circumstances of the assault.. Properly weighed, it was of no value to the state, nor harmful to the defendant. If, however, it be considered to have shed light upon the case, it was properly admitted as a dying declaration. — Gerald v. State, 128 Ala. 6, 29 South. 614.
The prosecution was permitted to show that about 10 minutes after the death of deceased, and while his body still lay upon the floor of the drug store, his little boy, who had come to the scene, was crying and asked of no person in particular, it seems, “Is my papa dead?” and that defendant said, “Yes, old Pat’s dead, son.” The defendant excepted. At another place in the transcript a similar exception is shown to have been reserved on the examination of a different witness as follows: “Here the solicitor asked the witness the following ques[24] tion, viz. ‘I will ask you if Jay Smith, in reply to Mr. Patterson’s little boy over the dead body of that man, he says in this way, says, “Yes, son, old Pat’s dead; old Pat’s dead ’ (solicitor raising his voice as he repeated the word). To this question the defendant objected because illegal, irrelevant, incompetent, immaterial, and inadmissible. The court overruled the objection, and the defendant excepted. The witness answered, ‘Yes, sir.’ The defendant moved the court to exclude the answer of the witness upon the same grounds interposed to the question; but the court overruled the motion, and the defendant excepted. Witness further stated that was the tone of voice the defendant used. The solicitor continued, ‘1 will ask you how Smith said it?’ The defendant objected to the question, and the court overruled the objection, and the defendant excepted. The solicitor asked the witness, “What did Smith say?’ and the defendant objected to what Smith said; but the court overruled the objection, and the defendant excepted. The witness then, in answer to the question objected to by the defendant, said: ‘He said: “Old Pat’s dead; old Pat’s dead; old Pat’s dead,” ’ — three times. Here the defendant moved the court to exclude the an-SAver of the witness because illegal, immaterial, incompetent, and inadmissible, and because no sufficient predicate had been laid, and because not shown to be a part of the res gestae; but the court overruled the motion, and the defendant excepted.” The statement attributed by the testimony to defendant Avas no part of the homicidal act nor of the circumstances so immediately attending the act as to constitute it a part of the res gestee. Most likely, if defendant at the time had made some exculpatory declaration, it would have been excluded because self-serving. — Kennedy v. State, 85 Ala. 326, 5 South. 300. Rut evidence may be capable of different construe-[25] lions, and we cannot say that this had no tendency to show defendant’s hostility at the time of the declaration, and from that the jury may have inferred hostility at the time of the killing. “Where an emotion of hostility at a specific time is to be shown, the existence in the same person of,the same emotion at another time is, in general, plainly admissible. * * * Subsequent hostility is equally receivable.” — 1 Wigm. on Ev. § 396. Our cases sustain this proposition. — McManus v. State, 36 Ala. 285; Henderson v. State, 70 Ala. 29; Walker v. State, 85 Ala. 7, 4 South. 686, 7 Am. St. Rep. 17. There must be a limit of the time intervening between the time of the hostile expression and that of the act sub judice, beyond which proof of this character ought not to be received; but that must be trusted in some degree to the discretion of the trial court. We have stated our opinion that the expression shown in this case may have been construed by the jury as indicating hostility to the deceased, and, this being so, it followed so closely upon the homicidal act that no objection could be sustained to it for remoteness in point of time. Though probably its legitimate effect as evidence of malice was small, its just interpretation and fihe weight to be assigned to it were matters for the jury.
Defendant’s statement to or request of the witness Walker to the effect that he was “not to tell anything, that he could have what he wanted,” and the several slightly variant versions of it were properly admitted. They bore the aspect of an effort to suppress the truth, or pervert the course of justice. If these expressions were capable of an innocent meaning, and in fact defendant meant no harm, that was a question for the jury.
[26] The clothing worn by deceased showed the location of the wound upon his person and, clearly, was admissible in evidence. — Rollings v. State, 160 Ala. 82, 49 South. 329.
Defendant appeared at the trial with one leg — he had lost the other prior to the killing. There was no error in allowing the state to show that when he killed deceased he was moving about on two legs — one a wooden leg. There is no room for question about that. But defendant claims the proof was intended and calculated to operate unfairly for him as amounting to an assertion that he was attempting to play upon the sympathies of the jury. Defendant was allowed to offer his explanation. And of this, as of other parts of the evidence of which defendant makes complaint as tending to arouse prejudice against him, it must be said that, being admissible for a. lawful purpose, it could not be excluded because capable of being distorted to unfair and prejudicial uses. Defendant’s remedy against perversion was, with the aid of the court, to direct the jury’s attention to the legitimate purposes and legal effect of the testimony.
Defendant devotes some part of his argument to the fact, which appeared in evidence, that after the indictment against him had been returned into court, and witnesses summoned for the trial, his witnesses were brought before the grand jury and examined touching their knowledge of the case. At the trial statements made under these circumstances were shown for the purpose of impeaching the testimony of defendant’s witnesses. • It does not occur to us that the course here indicated could have been taken with any proper and lawful purpose. None appears in the bill of exceptions. At least we will say that if the purpose was in this, as the only possible way having an appearance of legit[27] imacy, to procure an examination of defendant’s witnesses in advance of the trial, the practice indicated a misconception of official duty and an abuse of the powers of the grand jury. But this cannot excuse the witnesses, nor preclude the state.
Charge numbered 1, and refused to' defendant, was a misleading statement of the doctrine of reasonable doubt, and there Avas no error in its refusal. The jury might well have convicted defendant, although they may not have believed everything testified to by the witnesses for the State.
So, also, of charge 2. We have a long line of decisions condemning the charge as misleading in homicide, and other cases in which the offense charged includes other offenses of minor grade of which the defendant may be convicted. — Stoball v. State, 116 Ala. 454, 23 South. 162; Burkett v. State, 154 Ala. 19, 45 South. 682; Parham v. State, 147 Ala. 57, 42 South. 1.
Of course it will not do to say that the jury may discard the evidence of a witness who is shown to have been under the influence of liquor, it may be to a slight degree, at the time of the occurrences to Avhich he undertakes to testify; though that circumstance may weigh against his credibility. No error as to charge 6.
Charge 7 Avas abstract in several particulars.
Defendant’s mere manner in inviting deceased around the corner will not suffice to relieve him of fault ini ¡bringing on the difficulty, if in fact his purpose was there more safely to kill him, as the jury may have inferred. No error as to charge 8.
Charge 9 Avas bad. It was abstract in part, and in part defective for pretermitting defendant’s belief that he was in peril.
Our first opinion was that charge 10, refused to the defendant, was involved and confusing. Upon recon [28] sideration we have reached the conclusion that the charge correctly and with reasonable clearness stated principles of law applicable to the tendencies of the evidence for the prisoner, that its refusal was error the injury of which is not refuted by the record, and that in consequence the judgment of conviction must be reversed. Defendant framed this charge by conjoining two charges which had the approval of this court in Bluett v. State, 151 Ala. 41, 44 South. 84. So much of it as instructed the jury that ‘if the defendant was free from fault in bringing on the difficulty, he was under not duty to retreat, unless you believe he could have retreated without increasing his danger or with reasonable safety” (charge 8 in the Bluett Case, supra) unquestionably contained a correct statement of the law. To this defendant added, so as to make one connected instruction, a copy, mutatis mutandis, of a charge for the refusal of which Bluett twice secured reversals in this court. — 151 Ala. 41, 44 South. 84; 161 Ala. 14, 49 South. 854. Notwithstanding the second member of the charge refused to the defendant in the case under consideration —charge 26 in the record shown in 151 Ala..; charge 13 in the record' shown in 161 Ala. — has been twice approved, we are inclined to think it is defective because, pretermitting any clear statement of the necessary hypothesis of defendant’s freedom from fault as a condition precedent to his right to stand his ground, this part of the charge, to state its substance in a few words, predicated defendant’s right to shoot and to a verdict of acquittal upon his reasonable and honest belief that lie was in danger of life or limb, and that he could not retreat without adding to his peril. It does properly state the burden of proof in respect to defendant’s freedom from fault; but it fails to make any clear affirmation of the fact that defendant’s right to stand his [29] ground depended upon Ms freedom from fault in bringing on the difficulty. That is left to inference. But this deficiency in the charge was in this case supplied by the addition of the first member which, as we have said, correctly stated the doctrine of retreat as affected by freedom from fault; the two together constituting a correct statement of the law of self-defense. Under the tendencies of defendant’s evidence he was entitled to have that law stated to the jury in a special charge. The bill of exceptions informs us that the court on defendant’s request gave numerous special charges, and it may be that defendant thereby had the benefit of every principle involved in the charge in question. But those charges have not been certified to this court, as they might have been, and we cannot know that any of them covered this charge. The burden of proving error rests upon the appellant. Error shown, the burden of proving that it did no injury to appellant rests upon the state. For the error in refusing this charge, the judgment of conviction will be reversed.
We find no other reversible error.
Reversed and remanded.
Anderson, Mayfield, and de Graffenried, JJ., concur. McClellan and Somerville, JJ., dissent as to the finding of error in the refusal of charge 10. Dowdell, C. J., not sitting.