We still think, and so hold, that charge 10 given for the defendant assumes a fact as to which the evidence was in conflict. In this we are borne out by the record from which we quote from the plaintiff's testimony: "I don't remember biting him. * * * No, sir, I didn't bite him. I didn't do nothing to him."
We are still of the opinion that charge 18, given for the defendant, misplaced the burden of proof. It is well settled that, as a general rule, in actions of this character, when justification or self-defense is involved, the burden is on the defendant to establish the same. It seems that this rule also applies to the negation of excessive force in the justification of the assault. Alabama Great Southern Railroad Co. v. Frazier,93 Ala. 45, 9 So. 303, 30 Am.St.Rep. 28.
The application for rehearing is denied.
All Justices concur in the denial of the rehearing in that the case was properly reversed.
THOMAS, BOULDIN, FOSTER, and KNIGHT, JJ., concur in the opinion.
GARDNER and BROWN, JJ., concur in the reversal as to charge 10, but do not think the giving of charge 18 was reversible error.