majority">WALKER, P. J.

No difficult or novel question is presented by the exceptions reserved to rulings made by the trial court on objections to evidence. No one of those rulings affords to the appellant any tenable ground of complaint.

Special complaint is made in the argument in behalf of the appellant of the action of the court in permitting the solicitor, on the cross-examination of the defendant’s witness Jack Porter, to elicit statements made by the deceased to the Avitness. These statements Avere brought out in responsive answers to questions to the witness, to which no objection was interposed. The defendant could not thus speculate on the ansAvers the witness Avould make, and then require the court to exclude the testimony so brought out. — Hudson v. State, 137 Ala. 60, 34 South. 854.

The court properly refused the requested written charge, to the effect that the burden of proof is on the state to shoAV that the defendant could not have retreated without increasing his danger. The use of the Avord “not” gave the charge a meaning different from that probably intended. It is not to be supposed that the intention Avas to request the court to charge that the state assumed the burden of proving the defendant’s inability to retreat.

Besides, a defendant who was under the duty to retreat, if this was practicable Avithout, increasing his peril, has the burden of proving this ingredient of self-defense. — Robinson v. State, 155 Ala. 67, 45 South. 916; Naugher v. State, 105 Ala. 26, 17 South. 24.

Written charge C, requested by the defendant, is involved and confusing, besides being so expressed as to *19be liable to convey tbe impression that tbe defendant’s possession of a pistol in circumstances of wbicb there was evidence could not bave tbe effect of aggravating any offense of wbicb be was guilty in killing tbe deceased. If, as there was evidence tending to prove, tbe killing was in a sudden encounter or affray, and was caused by the defendant by tbe use of a deadly weapon, wbicb was concealed before tbe commencement of tbe fight, tbe deceased having no deadly weapon drawn, tbe killing was murder, when, but for such concealment of a deadly weapon by tbe defendant and tbe failure of tbe deceased to bave one drawn tbe homicide may bave been of lower grade. — Code 1907, § 7086. Tbe charge in question was properly refused.

There is no error in tbe record.

Affirmed.

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