¶1Forest Williams was convicted of the offense of assault with intent to murder, and appeals.
¶2The state's evidence tended to show an unjustified assault with murderous intent by the defendant upon one William L. Butler. The defendant's evidence tended to show self-defense. The issues were properly submitted to the jury.
¶3The case has been here once before, and the decision of the court will be found in 20 Ala. App. 257, 101 So. 367.
¶4There was no error in overruling defendant's objection to the introduction of testimony as to the conversation between the defendant and the assaulted party had at the forks of the road some half mile from the place of the difficulty, where, as here, it was shown that they were continuously together from the time of that conversation to the time of the assault, a short time later. It was part of the res gestæ. Shumate v. State, 19 Ala. App. 340, 97 So. 772; Harris v. State,,19 Ala. App. 575, 99 So. 320; Blair v. State, 211 Ala. 53,99 So. 314.
¶5It was permissible to show the physical condition of the assaulted party at the time of the difficulty. There was no error in overruling defendant's objections to questions to the witness W. L. Butler and Dr. Campbell calling for this information. Lambert v. State, 208 Ala. 42, 93 So. 708; Nolan v. State, 207 Ala. 663, 93 So. 529.
¶6As to whether the threat made at the Metcalf house in the hearing of Mrs. Metcalf was a threat against Butler was, under the facts, a question for the jury. The court did not err in allowing her to testify as to same. Williams v. State, 20 Ala. App. 257,101 So. 367.
¶7The rules for proving the reputation of one for violence and bloodthirstiness did not authorize the questions as to Butler's temper. There was no error in the several rulings of the trial court in this regard. Bullington v. State, 13 Ala. App. 61,69 So. 319; Murphy v. State, 14 Ala. App. 78, 71 So. 967.
¶8Each of the other exceptions reserved by the defendant on account of the admission or rejection of testimony has been critically examined by us, and in none of the rulings underlying same do we find that the trial court committed prejudicial error. The written refused charges have likewise been studiously considered, and we are of the opinion that the proposition of law contained in each of them was either incorrect, abstract, or fully and fairly conveyed to the jury in the trial court's unusually full and fair oral charge or in some one or the other of the written charges given at defendant's request.
¶9The defendant appears to have had a fair trial under proper rulings and instructions to the jury by the court. No prejudicial error anywhere appearing, the judgment will be affirmed.
¶10Affirmed.
¶12We are not allowed to say by our holding that we are of the opinion that the result of the trial would not have been different had the question been allowed. Ex parte Damon Ford,213 Ala. 410, 104 So. 840.
¶13It was likewise error to permit the questions to the witness Parsons, over defendant's objections; as to whether or not his testimony on a former trial was true.
¶14The matters treated herein were not discussed in detail in the opinion formerly handed down, and what we said therein is adhered to, except as modified by this opinion.
¶15The judgment of affirmance is set aside, this opinion added to that formerly written, and for the error first hereinabove pointed out the judgment of conviction is reversed and the cause remanded.
¶16Reversed and remanded.
¶17Forest Williams was convicted of the offense of assault with intent to murder, and appeals. •
¶18The state’s evidence tended to show an unjustified assault with murderous intent by the defendant upon one William L. Butler. The defendant’s evidence tended to show self-defense. The issues were properly submitted to the jury.
¶19The case has been here once before, and the decision of the court will be found in 20 Ala. App. 257, 101 So. 367.
¶20There was no error in overruling defendant’s objection to the introduction of testimony as to the conversation betwben the defendant and the assaulted party had at the forks of the road some half mile from the place of the difficulty, where, as here, it was shown that they were continuously together from the time of that conversation to the time of the assault, a short time later. It was part of the res gestae. Shumate v. State, 19 Ala. App. 340, 97 So. 772; Harris v. State, 19 Ala. App. 575, 99 So. 320; Blair v. State, 211 Ala. 53, 99 So. 314.
¶21It was permissible to show the physical condition of the assaulted party at the time of the difficulty. There was no error in overruling defendant’s objections to questions ,to the witness W. L. Butler and Dr. Campbell calling for this information. Lambert v. State, 208 Ala. 42, 93 So. 708; Nolan v. State, 207 Ala. 663, 93 So. 529.
¶22As to whether the threat made at the Metcalf house in the hearing of Mrs. Met-calf was a threat against Butler was, under the facts, a question for the jury. The court did not err in allowing her to testify as to same. Williams v. State, 20 Ala. App. 257, 101 So. 367.
¶23The rules for proving the reputation of one for violence and bloodthirstiness did not authorize the questions as to Butler’s temper. There was no error in the several rulings of the trial court in this regard. Bullington v. State, 13 Ala. App. 61, 69 So. 319; Murphy v. State, 14 Ala. App. 78, 71 So. 967.
¶24Each of the other exceptions reserved by the defendant on account of the admission or rejection of testimony has been critically examined by us, and in none of the rulings underlying same do we find that the trial court committed prejudicial error. The written refused charges have likewise been studiously considered, and we are of the opinion that the proposition of law contained in each of them was either incorrect, abstract, or fully and fairly conveyed to the jury in the trial court’s unusually' full and fair oral charge or in some one or the other of the written charges given at defendant’s request.
¶25The defendant appears to haVe had a fair trial under proper rulings and instructions to the jury by the court. No prejudicial error anywhere appearing, the judgment will be affirmed.
¶26Affirmed.
¶27On Rehearing.
¶28This case was well and ably tried. An exceedingly large number of witnesses were *229examined. It is the second conviction of this appellant. But our duty is to follow the decisions of the Supreme Court, and, under those decisions, as well as some prior adjudications of this court in line therewith, we must hold that the action of the trial court in sustaining the state’s objection to the question propounded by defendant to the state’s' witness John Butler, on his cross-examination’ after the witness had stated that he was a brother of the man, for assaulting whom defendant was on trial, and that he had helped employ counsel, which question was: “I-low much did you pay (counsel to assist the state in this case)?” was reversible error. Dickey v. State, 197 Ala. 610, 73 So. 72; Davidson v. State, 19 Ala. App. 77, 95 So. 54; Hembree v. State, 20 Ala. App. 181, 101 So. 221; Ham v. State, ante, p. 103, 105 So. 390.
¶29We are not allowed to say by our holding that we are of the opinion that the result of the trial would not have been different had the question been allowed. Ex parte Damon Ford, 213 Ala. 410, 104 So. 840.
¶30It was likewise error to permit the questions to the witness Parsons, over defendant’s objections, as to whether or not his testimony on a former trial was true.
¶31The matters treated herein were not discussed in detail in the opinion formerly handed down, and what we said therein is adhered to, except as modified by this opinion.
¶32The judgment of affirmance is set aside, this opinion added to that formerly written, and for the error first hereinabove pointed out the judgment of conviction is reversed and the cause remanded.
¶33Reversed and remanded.