Whether the statement of the cause of complaint in the Circuit Court, which is prepared by the solicitor on appeal from the County Court, is amendable, was fully considered in Tatum v. State, 66 Ala. 465 ; and it was held, that it was capable of amendment, if a newr and different case was not introduced. A re-consideration of the question is unnecessary.
The defendant read in evidence a statement of facts, to which the State admitted Mrs. Crawford, an absent witness, would testify, if present. Between this statement and the evidence of the constable there is a conflict, as to what occurred at the time it is alleged the offense was committed. The defendant made a statement, but Mrs. Crawford and the constable wmre the only witnesses as to the facts. The defendant requested the court to instruct the jury as follows: “If the jury believe that the statement, as to what Mrs. Crawford would swear, is a true and correct account of what occurred, and all that occurred, at the time the constable Brock first went to the defendant’s house with the detinue writ, then it would be the duty of the jury to acquit the defendant.” A charge is properly refused, which refers the jury to the testimony on behalf of one of the parties'only, when witnesses are examined by both parties; or which assumes there is an irreconcilable conflict between the testimony of the witnesses ; or which makes the guilt or innocence of the accused depend on what one or more witnesses prove, instead of on the facts as found upon the whole evidence. — Dill v. State, 25 Ala. 15; Cain v. Penix, 29 Ala. 374 ; Carter v. State, 33 Ala. 429. We do not consider the charge obnoxious to either of these charges. Where the evidence presents two variant phases of the case, either party has the right to have the jury instructed as to the law arising on his hypothesis of the case ; and a charge is unobjectionable, which asserts a correct legal proposition founded on the hypothetical facts, which there is evidence tending to prove, and makes the application of the law dependent on their ascertainment by the jury from the whole evidence. — Hill v. Townsend, 69 Ala. 286. The charge requested refers to the statement as setting forth the defendant’s phase of the case, and makes it a part of the instruction, instead of reciting therein the hypothetical facts at length. The expression — “the statement as to what Mrs. Crawford would swear” — was used to identify the particular statement made a part of the charge. Its effect is not to make the innocence of the defendant dependent on what Mrs. Crawford proved, but on the ascertain*26ment by the jury that the facts set forth in the statement are true and correct, and all that occurred. Neither does the charge withdraw the other evidence from the consideration of the jury. It is manifest, if the facts are as set forth in the statement, the defendant is not guilty.
We deem it proper to remark, that we regard such charges as objectionable, though the one under consideration is not sufficiently so to authorize its refusal. The better practice is to recite in the charge the facts on which the legal proposition is founded. Had not the statement been in writing, and before the jury, we would have held, that the charge was properly refused ; and do not mean to extend the rule.
Reversed and remanded. Defendant will remain in custody until discharged by due course of law.