*10ON REHEARING.
TYSON, J.The trial judge in his oral instructions to the jury said to them, among other things, “Evidence of the turbulent, bloodthirsty and dangerous character of the deceased is competent and proper to enable the jury to determine the degree of the offense and the character of the punishment.” While confessedly this is a matter (jf which the accused cannot complain, yet, it is important to the administration of the criminal law that it be corrected. The principle asserted seems to be fully sustained by the cause of Fields v. State, 47 Ala. 603. But this cause has been practically overruled, though not eo nomine, by numerous decisions of this court rendered subsequently, and is directly in conflict rvith others rendered prior to it. — Pritchett v. State, 22 Ala. 39; Franklin v. State, 29 Ala. 14; Rhea v. State, 100 Ala. 169, and cases there cited; Jackson v. State, 90 Ala. 590; Winter v. State, 123 Ala. 1.
The principle deducible from these cases is that evidence of the turbulent, bloodthirsty and dangerous character of the deceased is only admissible when there is testimony tending to establish that the accused acted.in self-defense; whére some overt act on the part of deceased is shown, calculated to impress his slayer with the reasonable belief that he is in danger of suffering grievous bodily harm or death and there is no reasonable mode of escape, and this for the purpose of determining who was the aggressor. In the absence of such an act on the part of the deceased, his character for turbulence and violence is wholly irrelevant.
It has never been the law in this jurisdiction that, because a man has the reputation of being turbulent and violent, his life may be taken. On the contrary it has been uniformly held that, whatever may be a man’s character for desperation and recklessness, he is entitled to the protection of the lawr; and it is as much a crime in the eye of the law^ to slay him, as it is the mqjst peaceable and law abiding citizen in the community. Evidence, therefore, of the character of the deceased for violence and the like, wdien properly admitted,'is limited in its *11consideration by the jury to determining solely the meaning of his overt act or demonstration.
The fourth and fifth part of the oral charge, to the effect that, before defendant can avail himself of the doctrine of self-defense, the jury must believe from the evidence that he was without fault, was clearly erroneous. His right to avail himself of this defense is not dependent upon his showing that he was free from fault. Indeed, there is no- burden on him to show that he was not at fault. It was only incumbent upon him to show; first, that at the time there ivas a necessity to take life, or that the circumstances were such as to create in his mind a reasonable belief that it was necessary to save life or to prevent great bodily harm; second, there was no reasonable mode o-f escape. When these ingredients have been established," the burden is upon the State to show that he was not free from fault. — Ncmgher v. State, 105 Ala. 26.
Reversed and remanded.
McClellan, C. J., Dowdell, Simpson, Anderson and Denson, J. J., concurring.