Although it is recited in the bill of exceptions that there was a demurrer to the indictment, which *228was overruled — and a writing purporting to be a plea in abatement, which was ordered to be taken from the file— there is no such demurrer or plea found in the record, nor any minute entry in respect thereof, showing that the court or judge had made any ruling whatever thereupon. We find no defect in the indictment for which a demurrer would lie; and no question respecting such a plea arises for our consideration. — Petty v. Dill, 53 Ala. 641.
The indictment charged appellant with an assault with intent to commit murder. And while the conflict about which Toe, the prosecutor who was assailed, first testified, was that which took place at or near his house, the previous attacks of appellant upon him during the same evening, which were allowed to be also proved, showed a continuous and persevering determination, by repeated assaults, accompanied by threats, to kill Toe or otherwise injure him. Evidence of them was admissible to enable the jury to determine whether or not the assault first proved was made with the intent charged in the indictment.
There was no error in permitting the witness to say that the freedman, Jud Smith, who was with defendant when making one of his demonstrations to intercept and assault Mr. Toe, was a tenant of defendant’s. Though this might not be allowable in such a case as Parker v. Haggerty, (1 Ala. 632,) cited on behalf of appellant, when a question in issue is whether or not the relation of landlord and tenant existed; in this instance the testimony meant no more than that Jud Smith lived on appellant’s land. As such, it was not the statement of a mixed question of law and fact, but of a fact merely. And whether it was described by saying that Smith was a tenant of defendant, or the occupant of his land, could make no difference whatever in a case like this.
Nor was there any error in permitting the acts of Jud Smith and his wife, Dorinda, when in their presence and apparently with the co-operation of Jud, appellant attempted to intercept Toe on his way home on the occasion of the assault upon him. This was a part of the res gestae of the case.
Dr. Allen, the physician of appellant, and introduced as a witness for the latter, saw him on the day of this assault, while under arrest for disorderly conduct, and thought him “intoxicated and angry.” There was no objection to his testifying, if asked to do so, his opinion of defendant’s sanity ; but it does not appear that he expressed or had any other opinion touching that matter than that he was “ intoxicated and angry.” There was no error in refusing to permit this witness to testify what defendant (Ross) said to him during *229his visit the next day to treat him for the hurts he had received in his conflict with Yoe, about what he had or had not eaten the day before, and what medicines he had taken, with a view of showing by such subsequent statements, that he was not of sound mind on the day before, To let in such posterior statements would enable a defendant, by contrivance, to make evidence for the exoneration of himself from penalties incurred by his criminal violation of law and of the rights of another.
A defendant, prosecuted for such an offense, is not permitted to be a witness on his own behalf. To have allowed Boss to prove by another who was present, what he had himself testified in his own defense, in the civil action brought by Yoe against him for this assault, would have enabled him to do indirectly what the law would not permit to be directly done. Such evidence was properly excluded.
Besides, this testimony of his, proposed to be now reproduced, was not given in a cause to which the State was a party, and in which appellant was subject to cross examination by the State’s attorney. And it can not be permitted, that in a suit between individuals, evidence shall be created, perhaps collusively, by which one of the parties shall escape condign punishment by indictment for a breach of the peace of the State.
The charges excepted to, state with reasonable accuracy when, and when not, drunkenness may afford defense against an indictment for an assault with an intent to commit murder. They are not inharmonious with the ruling on this subject in Mooney v. The State, 33 Ala. 419. If any explanation or additions would have adapted them better to the circumstances of this case, they should have been asked of the presiding judge, if needed. We do not find any error in the instructions that were given. Appellant was found guilty of assault and battery only.
Let the judgment of the Circuit Court be affirmed.