FOSTER, J.
The appellant was indicted for murder in the first degree, and convicted of manslaughter in the first degree.
The evidence for the state was directed to showing that deceased’s'wife was a daughter of defendant’s stepmother, and was with her children at her mother’s home at the time of the fatal difficulty. Defendant and deceased rode in a car to the home of Mrs. Valentine, defendant’s stepmother, where he was a guest, and when the car was stopped a dispute arose between them about some whisky. An altercation occurred in which deceased struck defendant with his fist, and defendant secured a stick and thr'eatened to break deceased’s head with it. There was evidence that deceased’s brother, Charlie McGill, was holding deceased during this ‘difficulty, and that Charlie McGill went with the deceased (his brother) to deceased’s home, a short distance away. Deceased returned to Mrs. Valentine’s and called for his wife and children. There was evidence that defendant had made threats against the deceased, immediately following the first difficulty, and that when deceased returned to the home of Mrs. Valentine, and entered the house, defendant shot him with a shotgun, and death ensued immediately.
Defendant claimed that deceased came back to the house, threatened to kill him, entered the house with a pistol in his hand, and that defendant fired the fatal shot in self-defense.
The court properly sustained objection to the question propounded to Charlie McGill, on cross-examination by defendant’s counsel, "Vou were afraid ho (deceased) would shoot you, and you let him go?” A witness may not be allowed to testify to his mental status, alleging he was afraid one would shoot him. Witnesses áre not permitted to testify to their motive, belief, intention, or state of mind when secret and uncommunicated. Stewart v. State, 78 Ala. 436.
Objection was properly sustained to the following question: “Is it not. a fact that you said you were afraid he would shoot you and you let him go?” A predicate laid for the purpose of impeaching a witness by contradictory statements, must show the time, place, and to' whom of in whose presence the alleged statements were made, so as to identify the statements as those included in the predicate,- and to fully inform the witness of the particular statements in
quired about. McDaniel v. State, 166 Ala. 7, 52 South. 400; Southern Railway Co. v. Williams, 113 Ala. 620, 21 South. 328; 4 Mayfield’s Dig. p. 1198, par. 168.
The court properly sustained objection to the following question to the witness, Charlie McGill: “Is it not a fact that Will nearly tore your clothing off of you trying to gefi away?” The question called for the opinion of the witness that deceased was trying to get away from him. It is a general rule that a witness must state facts and cannot give his opinion as to their existence. 4 Michie’s Dig. p. 206, par. 285(1).
On cross-examination Mrs. McGill testified that she did not remember whether or not she said on the preliminary trial anything about whether defendant said he was going to break deceased’s neck with a stick. It was not error for the court to refuse to permit a repetition of the question and answer. Jones v. State, 181 Ala. 63, 61 South. 434; Louisville & Nashville B. R. Co. v. Dilburn, 178 Ala. 600, 59 South. 438: Dnited Order of Golden Cross v. Hooser. 160 Ala. 334, 49 South. 354; Braham v. State, 143 Ala. 28, 38 South. 919.
It was immaterial to any issue in the casé to show that the witness Mrs. McGill and her mother were undressed about the time of the fatal difficulty. To be admissible the evidence must be relevant to the issue. 1 Wharton, Cr. Ev. p. 24, § 24; Hadnot et al. v. State, 3 Ala. App. 102, 57 South. 383; McCormack v. State, 102 Ala. 156, 15 South. 438.
A general objection to the testimony of Mrs. McGill that she and McGill (deceased) were going to the water bucket just before the fatal shot was. fired presents no question for review here, as the evidence was not patently and palpably illegal or irrelevant. Washington v. State, 106 Ala. 58, 17 South. 546; Gunter v. State, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17; Nickerson v. State, 6 Ala. App. 27, 60 South. 446; McClellan v. State, 117 Ala. 140, 23 South. 653; Brooks v. State, 146 Ala. 153, 41 South. 156. The evidence whs so intimately connected with the time and place of the fatal difficulty as to constitute a part of the res gestee, and was admissible. 4 Michie’s Dig. p. 138, par. 214(2).
It was permissible for Mrs. Valentine to relate a conversation with the defendant occurring just prior to the fatal difficulty in which conversation the defendant threatened to kill the deceased. It was permissible for the witness to relate what she said to the defendant and what he said in reply. Evidence of the threat was admissible. Wims v. State, 90 Ala. 623, 8 South. 566; Barnes v. State, 88 Ala. 204, 7 South. 38, 16 Am. St. Rep. 48; Drake v. State, 110 Ala. 9, 20 South. 450; Lawrence v. State, 84 Ala. 424, 5 South. 33. The evidence was admissible as part of the res geste. L. & N. R. R. Co. v. Stewart, 128 Ala. 313, 29 South. 562; So. Ry. Co. v. Crowder, 130 Ala. 256, 30 South. 592.
It was competent for the state to show by Mrs. Valentine that she knew that the deceased did not have any weapon in his hand at the time he was killed. She was present and testified she saw .the hands of the deceased, and that he 'had nothing in them. She could further testify that she knew he had no weapon in his hands.
During the cross-examination of Mrs. Valentine by defendant’s counsel, the trial judge said:
“Mr. Simpson, you have been over that several times, and I am going to -see that this woman is treated fairly.”
Defendant’s counsel reserved exception to the remarks of the court, and the trial judge then said to the jury:
“That is not for your benefit, gentlemen of of the jury, and you will not consider it on making up your verdict. It is for the benefit of the gentlemen who is cross-examining this woman. She is a woman, and as long as I preside over the court, I am going to see that a woman is treated fairly. The whole cross-examination has been for the purpose of crossing and tangling her up.”
The remarks objected to were in effect withdrawn by the court in his instruction to the jury not to consider them. To the remarks of the court to the jury the defendant reserved no exception, and no question is presented for review here. Doby v. State, 15 Ala. App. 591, 74 South. 724; Woodson v. State, 170 Ala. 87, 54 South. 191.
Objection was interposed by the state, and sustained, to certain questions propounded by the defendant’s counsel to Harvey Clayton as to whether to the best of his knowledge it was Will McGill’s voice that he heard making certain statements. 'Latpr in his testimony the witness testified that to the best of his knowledge it was Will Mc-Gill’s voice. The defendant had full benefit of this testimony, and cannot Complain that , objection was sustained in the first instance.
It was competent for defendant’s counsel to ask Mrs.
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FOSTER, J.
The appellant was indicted for murder in the first degree, and convicted of manslaughter in the first degree.
The evidence for the state was directed to showing that deceased’s'wife was a daughter of defendant’s stepmother, and was with her children at her mother’s home at the time of the fatal difficulty. Defendant and deceased rode in a car to the home of Mrs. Valentine, defendant’s stepmother, where he was a guest, and when the car was stopped a dispute arose between them about some whisky. An altercation occurred in which deceased struck defendant with his fist, and defendant secured a stick and thr'eatened to break deceased’s head with it. There was evidence that deceased’s brother, Charlie McGill, was holding deceased during this ‘difficulty, and that Charlie McGill went with the deceased (his brother) to deceased’s home, a short distance away. Deceased returned to Mrs. Valentine’s and called for his wife and children. There was evidence that defendant had made threats against the deceased, immediately following the first difficulty, and that when deceased returned to the home of Mrs. Valentine, and entered the house, defendant shot him with a shotgun, and death ensued immediately.
Defendant claimed that deceased came back to the house, threatened to kill him, entered the house with a pistol in his hand, and that defendant fired the fatal shot in self-defense.
The court properly sustained objection to the question propounded to Charlie McGill, on cross-examination by defendant’s counsel, "Vou were afraid ho (deceased) would shoot you, and you let him go?” A witness may not be allowed to testify to his mental status, alleging he was afraid one would shoot him. Witnesses áre not permitted to testify to their motive, belief, intention, or state of mind when secret and uncommunicated. Stewart v. State, 78 Ala. 436.
Objection was properly sustained to the following question: “Is it not. a fact that you said you were afraid he would shoot you and you let him go?” A predicate laid for the purpose of impeaching a witness by contradictory statements, must show the time, place, and to' whom of in whose presence the alleged statements were made, so as to identify the statements as those included in the predicate,- and to fully inform the witness of the particular statements in
quired about. McDaniel v. State, 166 Ala. 7, 52 South. 400; Southern Railway Co. v. Williams, 113 Ala. 620, 21 South. 328; 4 Mayfield’s Dig. p. 1198, par. 168.
The court properly sustained objection to the following question to the witness, Charlie McGill: “Is it not a fact that Will nearly tore your clothing off of you trying to gefi away?” The question called for the opinion of the witness that deceased was trying to get away from him. It is a general rule that a witness must state facts and cannot give his opinion as to their existence. 4 Michie’s Dig. p. 206, par. 285(1).
On cross-examination Mrs. McGill testified that she did not remember whether or not she said on the preliminary trial anything about whether defendant said he was going to break deceased’s neck with a stick. It was not error for the court to refuse to permit a repetition of the question and answer. Jones v. State, 181 Ala. 63, 61 South. 434; Louisville & Nashville B. R. Co. v. Dilburn, 178 Ala. 600, 59 South. 438: Dnited Order of Golden Cross v. Hooser. 160 Ala. 334, 49 South. 354; Braham v. State, 143 Ala. 28, 38 South. 919.
It was immaterial to any issue in the casé to show that the witness Mrs. McGill and her mother were undressed about the time of the fatal difficulty. To be admissible the evidence must be relevant to the issue. 1 Wharton, Cr. Ev. p. 24, § 24; Hadnot et al. v. State, 3 Ala. App. 102, 57 South. 383; McCormack v. State, 102 Ala. 156, 15 South. 438.
A general objection to the testimony of Mrs. McGill that she and McGill (deceased) were going to the water bucket just before the fatal shot was. fired presents no question for review here, as the evidence was not patently and palpably illegal or irrelevant. Washington v. State, 106 Ala. 58, 17 South. 546; Gunter v. State, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17; Nickerson v. State, 6 Ala. App. 27, 60 South. 446; McClellan v. State, 117 Ala. 140, 23 South. 653; Brooks v. State, 146 Ala. 153, 41 South. 156. The evidence whs so intimately connected with the time and place of the fatal difficulty as to constitute a part of the res gestee, and was admissible. 4 Michie’s Dig. p. 138, par. 214(2).
It was permissible for Mrs. Valentine to relate a conversation with the defendant occurring just prior to the fatal difficulty in which conversation the defendant threatened to kill the deceased. It was permissible for the witness to relate what she said to the defendant and what he said in reply. Evidence of the threat was admissible. Wims v. State, 90 Ala. 623, 8 South. 566; Barnes v. State, 88 Ala. 204, 7 South. 38, 16 Am. St. Rep. 48; Drake v. State, 110 Ala. 9, 20 South. 450; Lawrence v. State, 84 Ala. 424, 5 South. 33. The evidence was admissible as part of the res geste. L. & N. R. R. Co. v. Stewart, 128 Ala. 313, 29 South. 562; So. Ry. Co. v. Crowder, 130 Ala. 256, 30 South. 592.
It was competent for the state to show by Mrs. Valentine that she knew that the deceased did not have any weapon in his hand at the time he was killed. She was present and testified she saw .the hands of the deceased, and that he 'had nothing in them. She could further testify that she knew he had no weapon in his hands.
During the cross-examination of Mrs. Valentine by defendant’s counsel, the trial judge said:
“Mr. Simpson, you have been over that several times, and I am going to -see that this woman is treated fairly.”
Defendant’s counsel reserved exception to the remarks of the court, and the trial judge then said to the jury:
“That is not for your benefit, gentlemen of of the jury, and you will not consider it on making up your verdict. It is for the benefit of the gentlemen who is cross-examining this woman. She is a woman, and as long as I preside over the court, I am going to see that a woman is treated fairly. The whole cross-examination has been for the purpose of crossing and tangling her up.”
The remarks objected to were in effect withdrawn by the court in his instruction to the jury not to consider them. To the remarks of the court to the jury the defendant reserved no exception, and no question is presented for review here. Doby v. State, 15 Ala. App. 591, 74 South. 724; Woodson v. State, 170 Ala. 87, 54 South. 191.
Objection was interposed by the state, and sustained, to certain questions propounded by the defendant’s counsel to Harvey Clayton as to whether to the best of his knowledge it was Will McGill’s voice that he heard making certain statements. 'Latpr in his testimony the witness testified that to the best of his knowledge it was Will Mc-Gill’s voice. The defendant had full benefit of this testimony, and cannot Complain that , objection was sustained in the first instance.
It was competent for defendant’s counsel to ask Mrs. Valentine, a witness fofi the sta’te, for the purpose of impeaching her testimony if she did not make a certain statement as to the acts of defendant and deceased in the fatal difficulty in the presence of Tom I-Iall at her house the night of the killing, and, upon denial being made by the witness, it was competent to prove by Tom Hall that she made the statement. The evidence may furnish a reasonable inference that Mrs. Valentine was the lady who made the statement. But the court will not' be put in • error for refusing to admit the evidence in view of Tom Hall’s testimony that— -
“I have seen Mrs. Valentine here ¿oday; I could not say whether or not she is the same lady that made the statement,” etc.
The defendant, on cross-examination, had full benefit of the evidence of Jim Tolen that to the best of his judgment the pistol offered in evidence was the same gun he saw defendant have; it was just like that (the pistol offered in evidence).
Charge S, the affirmative charge for defendant was properly refused. There was a conflict in the evidence and ample evidence to justify a conviction. Charge 13 was properly refused. It omits an essential element of self-defense — freedom from fault in bringing on the difficulty. Refused charge 15 was fully covered by given charge 14. Courts are not required to repeat charges already given. Taylor v. State, 121 Ala. 40, 25 South. 701; McAlpine v. State, 117 Ala. 93, 23 South. 130. Charge 21 is faulty. It is not predicated on the evidence. Edwards v. State, 205 Ala. 160, 87 South. 179. It also omits an essential element of self-defense — freedom from fault. The defendant was a guest in the home of his stepmother and was under no duty to retreat. Charge 24 was faulty. It omits freedom from fault in bringing on the difficulty. Charges 27, 30, and 36 were properly refused. Charge 29 was not predicated on the evidence and was properly refused. Edwards v. State, 205 Ala. 160, 87 South. 179. Charge 31 was properly refused. Charge 32 was fairly and fully covered by the oral charge. Charge 33 was not predicated on the evidence, and was properly refused. Edwards v. State, supra.
Charge 34 was faulty. The written charges given and the oral charge are to be considered as a whole. The charge gave undue importance to the written charges. Martin v. State, 104 Ala. 71, 16 South. 82; Home Protection, etc., v. Whidden, 103 Ala. 203, 15 South. 567.
Charge 2A was properly refused as abstract. There was an absence of any evidence reducing the homicide to manslaughter in the second degree. Untreinor v. State, 146 Ala. 26, 41 South. 285; Stoball v. State, 116 Ala. 454, 23 South. 162. Refused charge D was covered by given charge A. It is not error . to refuse a charge where the court has already given a charge substantially the same as the charge requested. Koch v. State, 115 Ala. 99, 22 South. 471; Miller v. State, 110 Ala. 69, 20 South. 392; Smith v. State, 92 Ala. 30, 9 South. 622.
Charge E was faulty. Charges requesting that the jury cannot look to certain evidence are argumentative and give undue prominence to certain evidence and are properly refused. Stone v. State, 105 Ala. 60, 17 South. 114.
We find no error in the record and the judgment of the circuit court is affirmed.
Affirmed.
On Rehearing.
The undisputed facts show that the defendant had been a guest for three weeks in the home of his stepmother and father. An invited guest is armed with the same right of self-defense while in the house, as if he were the owner, as to all persons except the lawful occupant, and, if free from fault, is under no duty to retreat, and has the right to protect himself against the unlawful assault of an outsider. This protection is thrown around the guest in any part of the house, and is not limited to the room actually occupied by him. Thomas v. State. 13 Ala. App. 50, 69 South. 315.
Charge. 27, refused to defendant, reads as follows:
“I charge you, gentlemen, that a man on his own premises is not required to retreat.”
The court, in its oral instructions to the jury, charged in part as follows:
“It is the law that when a man is in his own house or home that is his castle añd he does not have to retreat any further than that.”
The court further charged that if the defendant was a guest at the home of his stepmother, Mrs. Valentine, it was his duty to retreat to his room. No exception was /reserved to this portion of the oral .charge; hence no question is presented for review.
The term “premises,” when used in reference to estates, signifies lands and tenements, and is not confined to lands adjacent to the dwelling. In Sandy v. State, 60 Ala. 18, it was held that “premises” includes an inclosed pasture situated more than a mile from the dwelling house. In Wright v. State, 136 Ala. 139, 34 South. 233, the court held that “premises” means any real estate.
“The law regards a man’s house as his castle, or, as was anciently said, his ‘tutissimum refugium,’ and having retired thus far, he is not compelled to yield further to his assailing antagonist.
* * *
When he has reached this refuge, he may stand at bay, and ‘may turn on and kill his assailant, if this be apparently necessary to save his own life; nor is he bound to escape from his house, in order to avoid his assailant.’ ” Jones v. State, 75 Ala. 8; Watts v. State, 177 Ala. 31, 59 South. 270.
“Premises” and “house” are not synonymous words. A man in his own house is of course on his own premises, but he may be on his own premises, many miles away from his house. It will be observed that the word “premises” used in refused charges 27, 29, 30, 31, and 36 may include a very large acreage of land, and is. not limited to the house or the “castle” of the defendant.
Courts will not extend the wholesome ancient doctrine that a man’s house is his castle where, being free from fault, he may stand his ground against his assailant, and from whence he need not retreat, to include all the lands he may own, and give him the same protection on those lands — many miles distant it may be — which the law throws around him vin his house. The requested
charges did not correctly state tlie law, and their refusal was proper.
We reaffirm what was said in our original opinion on the other questions involved.
The application for rehearing is overruled.