ON REHEARING.
Since handing down the foregoing opinion, we find that our Supreme Court in a recent case (Beyer v. B. R. L. & P. Co., 64 South. 609) has expressly decided that the doctrine of retreat has no application and is not necessary to the right of self-defense in assault and battery cases, and this court has, therefore, ex mero motu restored the present case to the docket for reconsideration, and it results upon such reconsideration that our ruling on one of the charges mentioned in the opinion must, as a consequence, be changed. This charge is charge A given at the request of the state, which was erroneous, in that it placed on defendant the duty of retreat.
We may add what we overlooked saying in the original opinion, that the other charge given at the request of the state, charge B, might also have been properly re*134fused because misleading, and because it fails to define the elements of self-defense. — Davis v. State, 8 Ala. App. 147, 62 South. 1027.
The charge, however, is not objectionable upon the ground, as urged by defendant on the original submission, that it ignores the question of a consideration by the jury, as provided by section 6308 of the Code, of opprobrious words or abusive language used by the person assaulted towards the defendant, since neither the evidence for the state nor that of the defendant tended in any way to show that the defendant committed the offense because of such a provocation. — Johnson v. State, 136 Ala. 76, 34 South. 209; Spigner v. State, 103 Ala. 30, 15 South. 892.
All the charges requested by defendant were objectionable in failing to hypothesize the defendant’s freedom from fault in bringing on the difficulty. — Johnson v. State, supra.
For the error of the court in giving written charge A for the state, the judgment of conviction is also reversed, and the cause remanded.
Reversed and remanded.