— As we understand the facts, when it was made known to the trial court that A. G. Smith, one of the persons from whom a jury was to be selected, had been convicted of a felony in this State, and had not been pardoned, the court declined to exclude him as a juror, unless he was-challenged for that cause. The defendant thereupon challenged him for cause, and the court held the challenge'well taken. So, the juror, Smith, neither sat upon the jury, nor was his exclusion charged to Tie defendant as one of his peremptory challenges. It was impossible for this ruling to have done the defendant any injury, and the Circuit Court, in thus ruling, committed no error.
It is certainly much the safer and better practice to exclude illegal testimony when first objected to. This, because of the difficulty of eradicating from the minds of the jury the impression such testimony is liable to make. The succeeding altercation and encounter which the accused had with Dunklin, could certainly shed no light on the question of his prior' assault on Thomas, alleged to have been made with intent to murder him. If that testimony had been subsequently excluded from the jury, it would have healed the error. — Smith v. Maxwell, 1 Stew. & Por. 221; Huckabee v. Shepherd, 75 Ala. 342; Booker v. State, 76 Ala. 22 ; Cleveland v. State, 86 Ala. 1; Childs v. State, 55 Ala. 28; Dismuke v. State, 83 Ala. 287. The court announced it would withdraw all the testimony relating to the altercation and difficulty with Dunklin, to which exceptions had been reserved. This was objected to by defendant’s counsel, and thereupon it was permitted to remain before the jury. This was not an error of- which defendant can complain.
It is settled in this State, that when a defendant testifies in liis own behalf in a criminal prosecution, his proven good character, unless first assailed, is not an evidential circumstance to which the jury may look in determining the credibility of his testimony. — Morgan v. State, 88 Ala. 223; Gibson v. State, 89 Ala. 121.
An intent to take life is an essential element of the statutory felony, assault with intent-to murder, and must be proved to the satisfaction of the jury. But, like the malicious intent in murder, it may be inferred by them from the character of the assault, the use of a deadly weapon, and the other attendant circumstances. No charge should be given which *90would authorize a conviction without satisfactory proof that the prisoner entertained such intent. A charge, however, which adds other words or matter by way of particularizing this necessary intent — as, that it must be positive, deliberate, actual, or specific, etc.- — tends to mislead the jury, and should not be given. This, not because the intent need npt, as matter of law, be positive, deliberate, actual and specific, to an extent which satisfies the minds of the j ury, but because such mode of expression has a tendency to mislead them as to the true measure of convincing proof to authorize a verdict of guilty. Walls v. State, 90 Ala. 618; Allen v. State, 52 Ala. 391.
Under the principles declared above, the Circuit Court did not err in giving the first and second charges excepted to, nor in refusing charges two, three and four asked by defendant.
When one is menaced with an assault, several inquiries present themselves: First, is he free from fault in bringing-on the difficulty? Second, is there reasonable room and ground for escape from the threatened injury? Third, is the threatened assault of such character as, if perpetrated, it is likely to produce death, or grievous bodily harm, as that phrase is defined in the books? All these considerations enter into and qualify the right to resist with a deadly weapon. — Meredith v. State, 60 Ala. 441; Washington v. State, 53 Ala. 29; Robinson v. State, 51 Ala. 86; Ex parte Nettles, 53 Ala. 268; Mitchell v. State, 60 Ala. 28; Ex parte Brown, 65 Ala. 446; Hadley v. State, 55 Ala. 31.
Construed in the light of the authorities cited, and the principles we have many times declared, the Circuit Court committed no error in giving charge 3 excepted to, and in refusing-charge 5 requested. Charge 3 places defendant’s right to employ a deadly weapon, in resistance of an impending assault, in as favorable a light as the law authorizes. Charge 5 requested is manifestly faulty. It requires more than '•fear of having great bodily harm inflicted,” to reduce an assault made with a deadly weapon below the grade of felony, if the intent to take life be found to have been entertained. To fully justify such defensive use of a deadly weapon, the danger must be really or apparently imminent, and there must be no other reasonable mode of escape. So, to repel the implication of malice, the party using- the deadly weapon must be in real or apparent danger of losing his life, or of suffering grievous bodily harm, and must be free from fault in bringing on the difficulty. Even with these conditions, if there was a previously formed design to use such deadly weapon, this would supply the element of malice, unless the person so using the *91deadly weapon was in real or apparent peril of life or limb? and bad no other reasonable mode of escape.
The facts postulated in the first charge asked, if' found by the jury, would certainly be circumstances to be weighed by them, in determining whether there was an intent to take life. We suppose they were so weighed, for the jury failed to convict the defendant of an intent to murder. They could not, however, as matter of law, raise the presumption that there was no intent to take life. The defendant may have originally had such intent, and after inflicting many dangerous blows, and having his adversary in his power, he'desisted from carrying out his original intention. This charge was properly refused.
Affirmed.