¶1It cannot be affirmed that the court abused its discretion in refusing to continue the cause and in putting the defendant on a showing for the absent witness, Seigler. — House v. State, 139 Ala. 132, 36 South. 732.
¶2The statement of witness Stallworth that he heard a pistol fire and that the hole in the forehead of deceased was caused by a bullet from a pistol, if error, became one on account of being an opinion of the witness not an expert on the subject, was clearly without injury, since the undisputed testimony, including that of defendant shows that the deceased Ayas killed by a bullet fired from a pistol striking him in the forehead.
¶3While it is true that a person may acquire by reputation a name AAdiich Avould as certainly identify him as his true name, and the assumed name or the one acquired by reputation may be used in the indictment just as effectively to identify him as his true name, yet proof of the assumed name or the one acquired by reputation cannot be established by the statement made to the Avitness by a third person that his name was the one alleged in the indictment. This is pure hearsay testimony, and should not have been admitted. Nor, for that matter, can the true name of a person be proven in this Avay. The AA'itness should have a personal knowledge of the fact to AAdiich he deposes, and not be allowed to predicate his knoAvledge purely upon what some one has told him. in the absence of the accused. It is undoubtedly true that the prosecution can sIioav that’ the deceased Avas as Avell knoAvn by the name alledged in the indictment as by his true name, if the one alleged is not his true name, for the purpose of identification, and therefore to establish *14that averment; but this cannot be done in the manner attempted on the trial, as shown by the examination of the witness Stallworth.
¶4The court correctly confined the state and defendant to proof of the bare fact of a previous difficulty between the deceased and the defendant, excluding the details of it. — Gordon v. State, 140 Ala. 29, 37, 36 South. 1009.
¶5The answer of witness McLeod in response to a question propounded to him by the solicitor on cross-examination was clearly incompetent and should have been excluded. The assumed name of the deceased or the one acquired by him by reputation could not be proven in this way. It “was too uncertain, indefinite, and remote to come within the class of evidentiary facts regarded as relevant.” It had no legitimate tendency to prove the same fact to be true in the particular case of the deceased. In other words, the fact that negroes living on McLeod’s place are sometimes called by the name of McLeod, does not tend to prove that deceased’s surname was McLeod, and not Moseley. Such testimony is entirely outside of the inference of the principle permitting evidence of custom or usage. — White v. State, 72 Ala. 195, 199.
¶6That portion of the showing of Seigler remaining after eliminating the details of what occurred between deceased and defendant at the store of Hybart & Co. should have been admitted. It contained nothing more than the fact of defendant leaving the store and going to the place where the shooting occurred, and what took place between deceased and defendant at the time of the killing.
¶7We will not discuss in detail the other exceptions reserved upon the trial to the rulings of the court upon the admission of evidence. Suffice it to say there was no error in any of them.
¶8As the judgment must be reversed, and the cause remanded for a new trial, we deem it unnecessary to review the exceptions taken to portions of the oral charge of the court, since it will not, in all probability, be tried again by the special judge who tried this cause. We will, however, review the written instructions requested and refused to the defendant.
¶9*15The first of them, if erroneously refused, is not available to work a reversal, because the defendant was convicted of murder in the second degree, which operates under our decisions as an acquittal of murder in the first degree. The second ivas correctly refused for the reason under the evidence that ivas admitted, though erroneous, it ivas for the jury to determine whether the deceased’s name was correctly laid out in the indictment. It certainly could not have been asked upon the theory that the homicide, Avhich was admittedly committed by defendant, was excusable. On the contrary, the testimony admitted by the court shows without dispute that defendant was at fault in bringing on the difficulty. His own testimony showed his willingness to engage in the deadly combat. His replies to deceased just before the shooting were of such a character as to provoke the deceased to advance upon him and to precipitate the apparent necessity to take his life. This being true, he cannot invoke the protection which the law accords to those who take human life in defense of their person. A slayer of a human being must not be unmindful of his words or acts on the occasion of the homicide, which are likely to produce the deadly combat. And if by his acts, words or conduct he shows a willingness to enter the conflict, or if by his words or acts he invites it, he must be held to have produced the necessity for slaying his adversary, and cannot invoke the doctrine of self-defense. — Reese v. State, 135 Ala. 13, 33 South. 672; 5 Mayfield’s Dig. p. 863. This also disposes of charges 1 and 5 adversely to defendant.
¶10Charge 3 should have been given. It asserts no more than that the burden of proof was upon the state to establish by the evidence the name of the deceased, as alleged in the indictment, by that degree of proof required in criminal cases. The plea of not guilty put in issue this allegation, and the state undertook to prove it, and properly so. It was a controverted issue of fact in the case, and a material averment in the indictment. — Underwood v. State, 72 Ala. 220.
¶11Reversed and remanded.