CLOPTON, J.
Whether the witness, W. B. King, was in such position that he could have heard" the deceased curse or swear, when he rode up to the store, if he had done so, may be said, in one sense, to be an opinion, but, in another sense, it is a fact; as said by Mr. Wharton, a “ mere short-hand rendering of the facts.” On cross-examination, the relative positions of the parties, the distance from each other, and other attendant circumstances, could have been elicited, from which the jury might infer the weight to which his answer was entitled. A controverted question in the case was, who provoked or brought on the difficulty ? The witness had already testified, that he did not hear the deceased curse or swear, as he rode up; while there was other testimony tending to show that he did. It [38]*38was competent for the defendant to show that the witness was not in a position to hear.
2. As tending to show the motive which moved the defendant, Green Tesney, to go to the store, and as tending to cast some light on the controverted question, by whom the difficulty was brought on, the court should have permitted the defendant to show his refusal to go to the store, and his reason for refusing, as then stated. The prosecution had -introduced evidence tending to show that the defendant went to the store for the purpose of killing the deceased. It was permissible for the defendant to rebut this evidence, by proving his refusal to go; and the circumstances under which he did go subsequently. Acts and declarations, occurring so shortly before the main fact, as to be directly connected with it, and to exclude the idea of fabrication or design, may be regarded as cotemporaneous; and are admissible, if pertinent to the issue, and tending, though dimly, to elucidate the controverted matters. The sufficiency of the evidence is addressed to the jury.
3-4. Whether a witness possesses the necessary qualifications to testify as an expert, is a preliminary question addressed to the court, and much must be left to the discretion of the presiding judge. The jury, having the facts, were as competent to form an opinion as to the position of the deceased when he fired the pistol, as a physician. The witness did not show that he had any experience in respect to the requisite proximity of a pistol to leave signs or indications of burnt powder on the clothing. A person may be skillful and experienced in the use of fire-arms, and have no observation or experience in respect to the particular matter inquired about’.— Weaver v. Ala. Coal Min. Co., 35 Ala. 176. But the court erred in permitting evidence of the result óf a solitary experiment of firing at a coat similar to the one worn by defendant, and the exhibition of the coat to the jury. Such evidence superinduces the mischief of trying a collateral controverted matter by proving-separate and distinct experiments, with results as variant as the manner of loading the pistols, and the modes of making the experiments, dependent more or less on the wishes and feeling of the person making them, and tends to confuse the jury, and withdraw their minds from the consideration of the main issue. The witness, if an expert, may give his opinion, and detail generally the facts on which it is based ; whereby the value of the opinion, and of the evidence on which it is founded, is submitted to the jury. — McCreary v. Turk, 29 Ala. 244.
5. There was error in refusing to permit the defendants to ask the witness Scott, on cross-examination, if he had not heard that the deceased, shortly before he was killed, had several rows [39]*39and shooting scrapes in Winston county. The relevancy and competency of the evidence was expressly ruled in DeArman v. State, 71 Ala. 351.
6. The circumstances, under which the accused may invoke thé plea of self-defense, have been well and uniformly settled by our decisions. To excuse the taking of life, there must exist a present, pressing necessit_y to prevent the commission of a felony, or of great bodily harm, or such apparent necessity as would create in the mind of a reasonable, prudent man a belief that it actually existed. If the accused is the aggressor, or is instrumental in bringing on the difficulty, he is precluded from setting up self-defense. He can not avail himself of a necessity brought about, or created by himself. If the deceased is the assailant, the party assailed must retreat, unless retreat will endanger his safety, and must refrain from taking life, if there is any other reasonable mode of escape. — Brown v. State, 74 Ala. 478; Wills v. State, 73 Ala. 362 ; DeArman v. State, 71 Ala. 351; Eiland v. State, 52 Ala. 322. The general charge of the court, on the doctrine of self-defense, accords substántially with these principles.
7. The charge given at the request of the solicitor, that “ before a defendant can set up the plea of self-defense successfully, he must show a pending and pressing necessity to strike,” is too narrow and restricted. It ignores the sufficiency of an apparent necessity.
8. Whether a particular weapon used is deadly or otherwise is, in many cases, a question for the jury, to be determined from the description of the weapon, the manner of its use, the nature and locality of the wound, and the other circumstances proved. An ordinary pocket-knife may be a deadly weapon. Sylvester v. State, 71 Ala. 17. There was error, however, in charging the jury, that if the defendant killed the deceased with a deadly weapon, the law will adjudge him guilty, unless the evidence which proves the killing rebuts the presumption of guilt. The accused may rebut the presumption of malice, arising from the use of a deadly weapon, by evidence other than that introduced to prove the killing. • The use of a deadly weapon, from which the law infers malice, casts on the defendant the onus of disproving it, unless the proved circumstances attending the killing rebut the presumption.
9. The other charges, given at the request of the solicitor, assert correct legal propositions; and if considered objectionable, because of their generality, or because calculated to mislead the jury, qualifying or explanatory instructions should have been asked.
10. Charges should be framed in reference to the evidence; and if their tendency is to mislead, or they withdraw from the [40]*40consideration of the jury any material fact, which the evidence tends to prove, they may be properly refused. The first three charges requested by the defendants omit from the facts hypothetically stated either the freedom from fault in bringing on the difficulty, or willingness to enter into combat, or the ability to retreat without endangering safety. The others are argumentative.
From an application of these principles to the different phases of the case, as presented by the record, it results : If the defendant, Green Tesney, went to the store with the intention, and for the purpose of provoking a difficulty, and did provoke, or was instrumental in bringing it on; or if he went there without such intention or purpose, and willingly entered into the fight, when he could have reasonably avoided the same, and, during its progress, inflicted the mortal wounds intentionally, and William Tesney aided and encouraged him, the defendants are guilty of murder, or manslaughter, as the jury may find that the lulling was with or without malice.
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CLOPTON, J.
Whether the witness, W. B. King, was in such position that he could have heard" the deceased curse or swear, when he rode up to the store, if he had done so, may be said, in one sense, to be an opinion, but, in another sense, it is a fact; as said by Mr. Wharton, a “ mere short-hand rendering of the facts.” On cross-examination, the relative positions of the parties, the distance from each other, and other attendant circumstances, could have been elicited, from which the jury might infer the weight to which his answer was entitled. A controverted question in the case was, who provoked or brought on the difficulty ? The witness had already testified, that he did not hear the deceased curse or swear, as he rode up; while there was other testimony tending to show that he did. It [38]*38was competent for the defendant to show that the witness was not in a position to hear.
2. As tending to show the motive which moved the defendant, Green Tesney, to go to the store, and as tending to cast some light on the controverted question, by whom the difficulty was brought on, the court should have permitted the defendant to show his refusal to go to the store, and his reason for refusing, as then stated. The prosecution had -introduced evidence tending to show that the defendant went to the store for the purpose of killing the deceased. It was permissible for the defendant to rebut this evidence, by proving his refusal to go; and the circumstances under which he did go subsequently. Acts and declarations, occurring so shortly before the main fact, as to be directly connected with it, and to exclude the idea of fabrication or design, may be regarded as cotemporaneous; and are admissible, if pertinent to the issue, and tending, though dimly, to elucidate the controverted matters. The sufficiency of the evidence is addressed to the jury.
3-4. Whether a witness possesses the necessary qualifications to testify as an expert, is a preliminary question addressed to the court, and much must be left to the discretion of the presiding judge. The jury, having the facts, were as competent to form an opinion as to the position of the deceased when he fired the pistol, as a physician. The witness did not show that he had any experience in respect to the requisite proximity of a pistol to leave signs or indications of burnt powder on the clothing. A person may be skillful and experienced in the use of fire-arms, and have no observation or experience in respect to the particular matter inquired about’.— Weaver v. Ala. Coal Min. Co., 35 Ala. 176. But the court erred in permitting evidence of the result óf a solitary experiment of firing at a coat similar to the one worn by defendant, and the exhibition of the coat to the jury. Such evidence superinduces the mischief of trying a collateral controverted matter by proving-separate and distinct experiments, with results as variant as the manner of loading the pistols, and the modes of making the experiments, dependent more or less on the wishes and feeling of the person making them, and tends to confuse the jury, and withdraw their minds from the consideration of the main issue. The witness, if an expert, may give his opinion, and detail generally the facts on which it is based ; whereby the value of the opinion, and of the evidence on which it is founded, is submitted to the jury. — McCreary v. Turk, 29 Ala. 244.
5. There was error in refusing to permit the defendants to ask the witness Scott, on cross-examination, if he had not heard that the deceased, shortly before he was killed, had several rows [39]*39and shooting scrapes in Winston county. The relevancy and competency of the evidence was expressly ruled in DeArman v. State, 71 Ala. 351.
6. The circumstances, under which the accused may invoke thé plea of self-defense, have been well and uniformly settled by our decisions. To excuse the taking of life, there must exist a present, pressing necessit_y to prevent the commission of a felony, or of great bodily harm, or such apparent necessity as would create in the mind of a reasonable, prudent man a belief that it actually existed. If the accused is the aggressor, or is instrumental in bringing on the difficulty, he is precluded from setting up self-defense. He can not avail himself of a necessity brought about, or created by himself. If the deceased is the assailant, the party assailed must retreat, unless retreat will endanger his safety, and must refrain from taking life, if there is any other reasonable mode of escape. — Brown v. State, 74 Ala. 478; Wills v. State, 73 Ala. 362 ; DeArman v. State, 71 Ala. 351; Eiland v. State, 52 Ala. 322. The general charge of the court, on the doctrine of self-defense, accords substántially with these principles.
7. The charge given at the request of the solicitor, that “ before a defendant can set up the plea of self-defense successfully, he must show a pending and pressing necessity to strike,” is too narrow and restricted. It ignores the sufficiency of an apparent necessity.
8. Whether a particular weapon used is deadly or otherwise is, in many cases, a question for the jury, to be determined from the description of the weapon, the manner of its use, the nature and locality of the wound, and the other circumstances proved. An ordinary pocket-knife may be a deadly weapon. Sylvester v. State, 71 Ala. 17. There was error, however, in charging the jury, that if the defendant killed the deceased with a deadly weapon, the law will adjudge him guilty, unless the evidence which proves the killing rebuts the presumption of guilt. The accused may rebut the presumption of malice, arising from the use of a deadly weapon, by evidence other than that introduced to prove the killing. • The use of a deadly weapon, from which the law infers malice, casts on the defendant the onus of disproving it, unless the proved circumstances attending the killing rebut the presumption.
9. The other charges, given at the request of the solicitor, assert correct legal propositions; and if considered objectionable, because of their generality, or because calculated to mislead the jury, qualifying or explanatory instructions should have been asked.
10. Charges should be framed in reference to the evidence; and if their tendency is to mislead, or they withdraw from the [40]*40consideration of the jury any material fact, which the evidence tends to prove, they may be properly refused. The first three charges requested by the defendants omit from the facts hypothetically stated either the freedom from fault in bringing on the difficulty, or willingness to enter into combat, or the ability to retreat without endangering safety. The others are argumentative.
From an application of these principles to the different phases of the case, as presented by the record, it results : If the defendant, Green Tesney, went to the store with the intention, and for the purpose of provoking a difficulty, and did provoke, or was instrumental in bringing it on; or if he went there without such intention or purpose, and willingly entered into the fight, when he could have reasonably avoided the same, and, during its progress, inflicted the mortal wounds intentionally, and William Tesney aided and encouraged him, the defendants are guilty of murder, or manslaughter, as the jury may find that the lulling was with or without malice. If, however, the defendants went to the store with peaceful intentions, and for a legitimate purpose, and the deceased, on riding up and discovering who Green Tesney was, attacked him with a pistol, so suddenly, and in such perilous proximity, that an attempt tore-treat would have endangered his safety ; and he struck the fatal blow under a present pressing necessity to prevent great bodily harm, or a reasonable apprehension that such necessity existed, and was without fault in bringing on the difficulty, they are not guilty of any criminal offense.
The jury must be satisfied beyond a reasonable doubt — not a capricious or fished doubt, but a doubt from which the mind is not reasonably free — of the truth of every material fact, necessary to the guilt of the defendant. If they entertain a reasonable doubt as to any such fact, or whether the killing was in self-defense, construed by the principles we have stated, the defendants are entitled to an acquittal.
We discover no error in the other rulings of the court.
Reversed and remanded. Defendants will remain in custody, until discharged by due course of law.