The appellant ivas convicted of an assault with intent to murder one Rabb. The bill of exceptions recites that “the evidence on the part of the state tended to establish the following facts: * * *” The defendant offered no testimony. The “facts” tended to be established by the evidence were to the effect that the defendant waylaid the victim and shot him. The general affirmative charge was given for the state. This was error. Such an instruction took from the jury the right to weigh the testimony, which did not necessarily establish guilt beyond a reasonable doubt, but tended only to that result. — Brewer’s Case, 113 Ala. 106, 21 South. 355.
In regard to the statute of limitations, the bénefit of which the appellant sought by a request for an instruction directing his acquittal, this record does not affirmatively show that the warrant issued by the judge of the county court ivas for the offense, or a lesser degree thereof, for which appellant was indicted. The commencement of the prosecution (section 5074, Code 1896), which suspends the operation of the statute of limitations, must be of an offense a continuance of which is found in that charged in the indictment.— Green’s Case, 139 Ala. 157, 36 South. 773.
For the error indicated, the judgment must be reversed, and the cause remanded.
Reversed and remanded.
Tyson, C. J., and Dowdell and Anderson, JJ., concur.