The court, of its own motion, instructed the jury as follows : “Whether or not deceased was a trespasser in attempting to take the mule, would depend upon whether or not Scott had the right to take the mule, and whether or not he, Scott, had given deceased authority to take the mule from defendant, and whether or not deceased was acting under such authority.” The defendant excepted to the giving of this instruction.
The evidence tended to show that the defendant was engaged in operating a machine called a stump-puller. It was operated by means of a lever to which a mule was hitched, the lever being drawn around in a circle by *66the mule, driven by ¿ person. Shortly before the homicide, the deceased had been engaged, under the employment of the defendant, in driving - the mule. ‘The mulé being used was hired by the defendant from one Scott'. On the morning of the homicide, ¿fter.the deceased had hitched the mule to the lever for the - purpose of . pursuing his work, the defendant became offended at some remark made'by deceased, and thereupon discharged deceased ■ from his employment. The deceased left'-the place of the work and went to the house of Scott, the owner of the mule, and soon returned with a note from Scott addressed to the defendant in the following'words : “October 15, 1895. Mr. Fuller, Let bearer, T. Henry, drive my mule until you hear from me further. If this does not suit you, send the mule home. [Signed] W. Scott.”. This note was delivered by deceased to the defendant, who refused to allow deceased either to drive the mule, or take it away. ..The evidence also tended to show that the deceased then declared his purpose to take the mule, and proceeded to unhitch the animal from the machine, and as he did so, the defendant, by physical force resisted his effort, whereupon a scuffle and' fight ensued between the parties in which the defendant stabbed the deceased with a knife so that he died.
In view of this evidence it is manifest that the in- . struction above set forth was erroneous. The mule being in' possession of the defendant, who was, at the -time, present insisting upon his right to retain such possession, and forbidding molestation .thereof by the deceased, the deceased had no lawful right to forcibly take possession from the defendant. So that,, it was not a question, necessarily, as to who was legally entitled to possession of the mule at the time. If Scott was entitled to reclaim possession, at that .time, he had his legal remedy. He nor his agent had any right to take the law in his own hands and retake possession of the mule under circumstances calculated to cause a breach of the peace.—Burns v. Campbell, 71 Ala. 271.
There was evidence tending to show that after the 'deceased declared his purpose to take the mule from the defendant, the defendant made to the deceased a profane threat to take his life, or do him great bodily harm. This testimony was sufficient to go to the jury for them to determine whether or not it had, in some- degree, the *67effect of provoking the difficulty. Charges 13, 14,' 18, 29, 333 requested by the defendant were faulty in' ignoring this feature of the evidence. They may be subject to -other defects ; and further, the record shows- they had been substantially given by the court in other written requests of the defendant.
There was no question before .the jury, arising upon the trial of the cause, touching the subject of the character of those witnesses of whom no impeachment was attempted. The court was, therefore, under no duty to give the jury instructions on that subject. '
Charge “A” was abstract in some of -its features, and properly refused for that reason. ' •
The court was under no duty to make the statement 'to the jury proposed by charge‘'B.” - ' •
What we have said above, in reference t.o the oral instruction of the court, will point out the inaptness of charge “<0?’ requested' by defendant..
For the error in giving said oral charge the judgment of the circuit court is reversed and the cause remanded.
Reversed and remanded.