The appellant was convicted of an assault and battery with a weapon, and fined $1. The testimony of the defendant (which was in conflict with that of the witness for the state) was that he found the party assaulted in a compromising position with his wife, and as said party ran away the defendant shot at him; some of the shot taking effect, but not inflicting a serious wound.
The principal contention of the defendant, raised by certain charges requested, is that the fact that the defendant shot immediately after finding the party assaulted in the compromising position with his wife was sufficient to justify an acquittal. Out of consideration *88for the frailty of human nature, if the husband, kills the man whom he finds in the act of adultery with his wife, the law reduces the crime from murder to manslaughter; ■ but the law has never declared him guiltless, whether he succeeds in killing him, or fails, leaving him guilty of an assault and battery with a weapon. 2- Bishop on Criminal Law (7th Ed.) 708; Hooks v. State, 99 Ala 166, 13 South. 767.
There was no error in the refusal to give said charges, and this includes also the exception to part of the oral charge of the court. In regard to the first written charge requested, it may be also said that it is a mere argument, and was properly refused for that reason.— Outler v. State, 147 Ala. 39, 40, 42, 41 South. 460; Williams v. State, 147 Ala. 12, 17, 26, 41 South. 992.
The judgment of the court is affirmed.
Tyson C. J., and Dowdell and Anderson, J.J., concur.