Hillard Smith killed Charles Pickett by shooting him with a gun. The evidence for the defendant, his own, tends to show that he shot in the heat of passion. The evidence for the State tends to show that there was no provocation for defendant’s passion, except mere words spoken to him by the deceased in response to words of like abusive character first addressed by the defendant to the deceased. On these tendencies of the evidence the jury might have found that *7the mortal wound was inflicted in the heat of passion engendered by mere words alone. So finding, the necessary effect of charges 1, 2, 4, 5 and 6, requested by the defendant would have been to authorize the jury to return a verdict of guilt of a lower degree of homicide than murder in the second degree ; and each of said charges were, therefore, bad on this, as well as, perhaps, on other, grounds ; since no principle in our criminal jurisdiction is more firmly established than that passion aroused by mere words cannot reduce homicide below the offense of murder in the second degree. — Mitchell v. The State, 60 Ala. 26 ; Nutt v. The State, 63 Ala. 180 ; Ex parte Brown, 65 Ala. 446; Roberts v. State, 68 Ala. 156 ; Martin v State, 77 Ala. 1; Watson v. State, 82 Ala. 10; Holmes v. State, 88 Ala. 26 ; Ex parte Sloane, 95 Ala. 22.
2. The indictment in this case charged not only murder in the first degree, but also murder in the second degree and all other grades of homicide. Charges, therefore, which were perhaps intended to declare that on certain postulates the jury could not convict the defendant of murder in the first degree, but which in terms declared that they could not convict him as charged in the indictment, (charge 2 for instance), or which assumes that murder in the second degree “is not murder as charged in the indictment,” the postulates justifying, it may be conceded, the conclusion as to murder in the first degree, but having no bearing upon any lower degree of homicide, were essentially confusing and misleading. This is an additional reason for the refusal of charges 2 and 4 réquested by the defendant. — Horn v. State, 98 Ala. 23; Bland v. State, 75 Ala. 574; Jones v. State, 96 Ala. 102 ; Lundy V. State, 91 Ala. 100.
3. All the charges refused to the defendant, moreover,- — that numbered 3, as well as others to which we have before referred, — were bad for the reason that they omit all inquiry as to whether the defendant or the deceased was the aggressor in the altercation, in which the words of abuse, which, on one aspect of the evidence, constituted the sole provocation for the defendant’s-passion, were employed. And this omission of the charges is especially pernicious in view of the fact that the evidence is substantially without conflict to the imputation of fault and aggression to the defendant in that connection. — Allen v. State, 52 Ala. 391; Jones v. State, 96 Ala. 102.
*84. Charge 3 is bad also for another reason : The evidence is without conflict or adverse inference to the effect that after the alleged passion engendering words of the deceased had been uttered, the defendant went off to his house, an hundred or two yards away, got his gun and came with it out of his house and the curtilage thereof, back to where the deceased was, and, according to the State’s evidence, had all the while remained, and there shot him. This charge assumes, in necessary effect, that all this time was not sufficient for the defendant’s passion to cool; and for this it was properly refused.
5. And this, as also charges 2 and 4, if we are to consider the latter as intended to assert that words may provoke such passion as will reduce homicide from murder in the first to murder in the second degree, are bad in that they each assumes the reasonable sufficiency of the language employed by the deceased to excite mitigating passion in the defendant, when so far as that passion being justified, the court might well have instructed the jury as a matter of law that the words shown by the State’s evidence, at least, did not constitute provocation for any mitigating passion on the part of the defendant, and if they found no other provocation for passion than the words which that aspect of the evidence tended to show, it was wholly immaterial whether the defendant’s passions were in point of fact excited or not. A passion thus without reasonable cause and immaterially excited is not a passion which the law takes into account in determining whether the homicide is murder in the first or second degree. — 9 Amer. & Eng. Encyc. of Law, pp. 579-80 ; Flanagan v. State, 46 Ala. 703.
Affirmed.