— The defendant was. convicted • of the offense of committing an assault with intent to- ravish. As to the first exception, referring to the leading question to Mr. Pitman, it is a matter within the discretion of the court to allow a leading question, and his- action-is not reviewable on appeal.—Brassel v. State, 91 Ala. 45, 8 South. 679.
•The testimony about the- firing of. the pistol, seeing the defendant go up the steps to his room, about whether or not the defendant was in the habit of .taking breakfast at the house of the father of the prosecutrix, and did not do so the morning after the-offense is claimed to have been committed, were proper circumstances to go. to the jury for the purpose of identifying-the defendant, showing a reason for his not coming to breakfast, etc. In fact, they were merely slight circumstances, which, if tlie-y had no bearing upon' the case, could not result in injury, and, if they had any bearing,, would only serve to explain actions which might have a legitimate bearing on the question of guilt or innocence. On the other hand, 'having allowed the prosecution to prove that the- defendant ivas in the habit of eating at the house, and that he did not eat breakfast there the, morning after the occurrence, - the evident purpose of which was to raise an inference of conscious guilt,, it was error to refuse to allOAv the defendant to answer the question as to Avhether it was anything unusual for -him not to take breakfast at the house, and thus give him an opportunity to ansAver -the inferences do be drawn from the previous testimony. . '
*616There was ho point made in the case as to the age of the women upon whom the assault was claimed to have been made, so that the refusal of the court to allow proof of her age could not result in any injury to the defendant. —Code 1896, § 4333.
The matter of permitting a witness to be recalled, for the purpose of putting questions to him with- a view of impeaching him, rests in the discretion of the court. Consequently the court could not be placed in error for refusing to permit the witnesses J. S. Collins and Tiny Collins to be recalled for that purpose.—Vann v. State, 140 Ala. 123, 37 South. 158.
The remarks of the solicitor did not constitute reversible error. He did not state any fact, but was making a “comment upon the evils generally of the crime which the law he was (is) seeking to enforce intends to prevent.”—Dollar v. State, 99 Ala. 238, 13 South. 575.
There was no error in the refusal of the court to give charge 1, requested by the defendant, as the jury might, under the evidence, have found the defendant guilty of an assault, or assault and battery.
The second charge requested by the defendant was that, “if the jury believe the evidence, they must acquit the defendant of an assault with intent to ravish.” This charge was misleading in directing the jury to “acquit” the defendant of an assault with intent to ravish, in place of instructing them that they could not find'him guilty of that offense. As worded, it was liable to impress the jury, that, being acquitted, he could not be found guilty of an assault.
Referring to the refusal of the court to give charge 7, requested by the defendant, our previous decisions on similar charges seem to be in some confusion. The expression was used in Ex parte Acree, 63 Ala. 234, that, “no matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, the defendant is not shown to be guilty by that full measure of proof which the law. requires.” This case was followed, and a charge in the same words held correct, in Gilmore’s Case, 99 Ala. 160, 13 South. 536. Without noticing these cases, such a charge was condemned and held to be bad, basing the decision on *617the Thomas Case, 106 Ala. 19, 17 South. 460, in which the language of the charge is not exactly the same.-Barnes v. State, 111 Ala. 56, 20 South. 565. It was held, again, that a charge that “probability that some other person may have done the killing is sufficient to create a reasonable doubt of the guilty of the defendant, and, therefore, for his acquittal,” would be appropriate “if the evidence was circumstantial, pointed to the defendant and some other person, not acting in concert with him,” but was not appropriate in that case, where the two persons were principals aiding and abetting, and, if one was guilty, both were.— Pickens v. State, 115 Ala. 42, 51, 52, 22 South. 551. In another case the charge was “that if the evidence is susceptible of the interpretation that Primus Hunter, and not the defendant, assaulted Ora Savelle, they must acquit the defendant,” and the court held, without citing any cases, that the charge “clearly invaded the province of the jury.”—Brown v. State, 121 Ala. 9, 12, 25 South. 744. Again, the charge being that the jury should acquit “if the jury could reconcile the evidence with the theory that some other person may have done the act,” the court supposes that the charge Was copied from the Acree Case, and states that such case is not authority for charging the jury in the language used, and holds the charge misleading.—Turner v. State, 124 Ala. 59, 63, 27 South. 272. Again, in the case of Bohlman v. State, 135 Ala. 45, 33 South. 44, the case of Gilmore v. State was declared to be wrong, and that the trial court com-mitter no error in refusing a similar charge. Again, the charge being, “A probability that some other person may have done the shooting is sufficient to create a reasonable doubt of the guilt of the defendant, and, therefore, for his acquittal,” the court held that the charge should have been given.—Spraggin v. State, 139 Ala,. 93, 98, 103, 35 South. 1000. Lastly, the charge being, “No matter how strong may be the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by the full measure of proof the law requires,” this court held it to be misleading, in that “it negatived the sufficiency of the evidence to convict if *618only it could be reconciled with the theory that some other person than the defendant may have done, the killing, without regard to whether such theory was based on evidence, or. was speculative merely.”—Bowen v. State, 140 Ala. 65, 67,-69, 37 South. 233.
In view of this conflict of opinion in our own decisions, we remark,-first, that such a charge is not proper at all, except in those cases where there is evidence pointing to one or more persons other than the defendant; second, it is not proper if the nature of the offense is such that both may have been guilty; third, if allowed at all, a “theory” hypothesized should be a reasonable theory. Coming to the case now before the court, it will be readily seen that the charge would be improper, because it does not negative the guilt of the defendant. The nature of the offense is such that two men might commit it, at different times, so that it might be, not only probable, but true, that some other person may have committed the same offense, and yet the defendant have been guilty also.
As charge 8 was given, and read to the jury, we cannot place the court in error, because it was found, the day after the trial, in the envelope with refused charges.
The judgment of the court is reversed, and the cause remanded.
Tyson; C. J., and Dowdell and Anderson, JJ., concur.