We are not able to agree that the main charge in this case correctly set forth the law, this being the only ground on which rehearing is sought. There are two propositions embraced in that part of the charge quoted in our former opinion, both of which, from the language used in the charge, would have to be rejected by the jury before they could acquit, viz.: First, that appellant was instructed or authorized by Thigpen to arrest Boren; and, second, that when appellant met Boren he fired his gun merely to cause the latter to stop. Said two propositions are conjunctively stated in said charge, as appears from an inspection thereof. As a matter of law, if appellant shot for no other purpose than to stop Boren, as he testified, when he met Boren in the road on the night in question, and without intent to kill him, appellant would not be guilty of assault to murder. He was clearly entitled to have this issue submitted to the jury free from any issue as to whether Thigpen had given him authority to arrest Boren or not. Thigpen testified that he did not so authorize appellant, and when the two propositions stated above are made dependent, one on the other, in the court's charge, this materially weakened appellant's ground for expecting the jury to acquit. The appellant's right to an acquittal should have been made dependent *Page 418 only on one of said propositions, viz.: that the jury believed he shot for the purpose of stopping Boren and with no intent to kill him.
The motion for rehearing by the state will be overruled.
Overruled.