The record in this case presents the following indictment: “The grand jury of said county charge that before the finding of this indictment that Oscar Andrews and Cornelius Andrews unlawfully and with malice aforethought did assault Jim Hughes, against the peace and dignity of the státe of Alabama” which is but a simple assault, and punishable under section 4343 of the Code of 1896, yet the defendant was sentenced to the penitentiary for three years, and upon the idea that he was convicted of a felony. The indictment does not support the sentence, and the cause must be reversed.
It is true the bill of exceptions sets out an indictment for an assault to murder; but, as the indictment is a part of the record proper, we are remitted to the one disclosed by the record, rather than the one set out in the bill, of exceptions, in passing upon'the validity of the sentence. We have a line of decisions holding that where the sentence is merely irregular, and there is no *59other reversible error, the case bvill be revrsd and remanded solely for sentence; but we do not care to invoke such a rule in cases where the indictment charges only a misdemeanor and the defendant is sentenced for a felony. The tiial court committed no error in the ruling upon the evidence.
The written charges of the defendant were so requested as to render the action of the trial court thereon beyond question, unless all the charges asked were good.—Verberg v. State, 137 Ala. 73, 34 South. 848, 97 Am. St. Rep. 17; Johnson v. State, 141 Ala. 37, 37 South. 456. It is sufficient to say that charges 1 and 3 were bad. Charge 1 leaves it to the jury to determine what elements would justify the shooting, when they should be set out.—Whatley v. State, 144 Ala. 68, 39 South. 1014; Mann v. State, 134 Ala. 1, 32 South. 704. Charge 3 pretermits a consideration of all the evidence.
For the erorr above designated, the judgment of the circuit court is revex sed, and the cause is remanded.
Reversed and remanded.
Haralson, Dowdell, Denson, and McClellan, JJ., concur. .