The insistence of counsel for appellant, in their application for rehearing, that "the defendant sought to show when the letter, the abusive letter, came to his attention, but this offer was refused"; is not borne out by the record, and it affirmatively appears that no such effort was made at any time during the trial of this case. The same is true as to the further insistence in the application for rehearing, to wit:
"The defendant sought to show the circumstances and the time when the same came to the attention of the defendant."
This statement is also unfounded and is not sustained by the record. To the contrary, the trial judge intimated to counsel for defendant that this would be necessary, and admonished defendant's counsel that —
"in order to get the benefit of the contents of the letter in question, it would be necessary to introduce proof enough to show that this difficulty occurred over or about that letter, before you can ever undertake to introduce the contents of the letter. You will have to introduce evidence enough to show that the fight occurred because of Painter's conduct."
Other statements of similar import were addressed to defendant's counsel by the court, but, notwithstanding this, the defendant made no effort whatever to show that the letter and paper in question had been written or published so recently or had only come to the knowledge of the defendant so recently, as to be "at or near the time of the assault," under the rule announced in Brooke v. State, 155 Ala. 78, 84, 46 So. 491,493. *Page 361 The following questions only were propounded to defendant touching this matter:
"Mr. Knox, you have heard of a good many things Phil Painter has been saying about you and Mr. Austin and the Law Enforcement crowd prior to this time? Had you been told by anybody that Phil Painter, as the editor of 'the Advance,' had been publishing things derogatory to your character, and circulating it among the striking miners? Had you or not read in 'the Advance' published by Phil Painter, articles advising the striking miners to march on the miners that were at Work and run them away as scabs? Had you or not, before that time, learned that this letter had emanated from his office? Had you been told by anybody who had investigated as to the stationery, or typewriter or anything of that sort, that everything pointed to the fact that he had written that letter? Do you know whether or not the newspaper, 'the Advance,' published by Mr. Painter, had been circulated among the striking miners free of charge, and containing a lot of stuff against Austin and his gang?"
Thus it is clearly shown that the statements contained in the application for rehearing are not sustained by the record, and, as stated in the original opinion, there was no offer to show or attempt made to prove that the alleged objectionable letter or paper had so recently been published or brought to the knowledge of the defendant to render either the letter or paper admissible as evidence.
We adhere to the original opinion, as formerly announced by this court.
The application for rehearing is overruled.