The conviction was of murder in the second degree. The objections, set up by way of abatement, to the indictment, because of alleged irregularities in constituting the grand jury returning the bill against this defendant, were not available, as is expressly provided in Code 1907, § 7572. ' These pleas were properly stricken. The only other matters of asserted error are special charges refused to defendant.
Charge 11 should have been given, and in my opinion its refusal was error. It is a copy of charge 6 approved *44in Harris’ Case, 96 Ala. 24, 11 South. 255. There is in this case an entire absence of evidence, and also of reasonable inference, leading to the conclusion that the defendant was at fault in bringing on the difficulty. The testimony shows, without dispute, that defendant’s son was shot by Matthew Graves (the deceased) while the son and Graves were at a dance in the neighborhood of defendant’s home. The wounded boy was brought to the defendant’s home. Soon thereafter Graves came into the bedroom of defendant, and the testimony shows without- dispute -that the defendant ordered Graves to leave the place, and that after some delay Graves left the house. It Avas further shown, without dispute, that defendant, shortly after Graves left the house, started after a doctor for his wounded boy. As defendant was about to leave his room, some one suggested that he carry his gun, since Graves was in the yard, and hence in the dark, and in leaving the house defendant would be in the light, thus giving Graves advantage over defendant. Defendant took his gun as suggested. Defendant is the only Avitness examined as to what took place at the time of the killing. He -thus states the circumstances: “Then I Avent between the bed and the Avail and picked up a shotgun and started out of the house. I started down on the ground, and saw somebody standing out in the yard facing the house, and said, “Matthew" Graves, why don’t you go on away from here?’ He said, No; I have not gone away from here, and I am not going.’ Then I saw him make a move for his hip pocket with his right hand. I had the gun in my -right hand and did not taire time to raise it to my shoulder, but just pointed it at him and fired.” There is not, in the record, a single circumstance or fact opposing, even inferentially, the quoted testimony of the defendant as respects fault vel non of the defendant in bringing on the difficulty. In order to impute fault to defendant *45in bringing on the difficulty, it must be held that his direction of deceased to leave defendant’s premises was wrongful. Such cannot be and is not the law. Defendant committed no hostile or menacing act, evinced no purpose, avowed no intent, other than any proprietor may rightfully imply towards a trespasser. In response to this the trespasser makes a hostile and menacing demonstration as if to draw a weapon. The proprietor, standing on the threshold of his home, with no duty to retreat upon him, shoots the threatening trespasser. The question treated in the charge was for the jury, and that unaffected by a qualification as to freedom from fault from bringing on the difficulty. If this defendant could possibly, under the evidence, be charged with being at fault, then no proprietor can with safety demand the departure of an intruder; for when he does he may be condemned as having been at fault, notwithstanding he is asserting, even without violence, his right of proprietorship. The fact that defendant had a gun cannot affect to color his act or words as unlawful or wrongful, because he had the right to make the demand of the intruder and also to carry his weapon to enforce the demand, so long as unnecessary force therewith was not employed, and the evidence shows, without dispute, that no use of the gun, or offer to use the gun, was attempted, or even indicated, until deceased made the menacing demonstration described. The case must be tried on the evidence,' not the imagination.
Justices Simpson and Maxwell concur in the foregoing views anent charge 11; but a majority of the court entertain the opinion that the charge was Avell refused on the ground that it omits to hypothesize defendant’s freedom from fault in bringing on the fatal difficulty, their view being that whether defendant was so free was, on the whole evidence, a jury question.
*46Charge 37 contains the inapt word “they,” where doubtless, “there” was the word intended to be employed. As framed, its refusal was not error. Had the charge contained “there,” instead of “they,” it would probably have been faultless. See Watkins Case, 133 Ala. 88, 32 South. 627.
Charge 31 should have been given, and its refusal was error. — Kennedy’s Case, 140 Ala. 9.
Charge 21 has been approved as charge 8 in Carwile’s Case, 148 Ala. 585, 39 South. 220.
The following special charges were correctly refused to defendant, because argumentative, if not otherwise bad: B, C, 27, 6, 8, and 24.
Charge D was faulty in pretermitting the essential factor that at the time defendant fired the fatal shot he entertained an honest belief of his peril within the rule therefor.
There is no charge E set out in the bill.
Charge 7 refers self-defense to the jury, without defining it, and, as has been repeatedly held, was at least bad on that account.
Charges 29 and 35 include patently inapt terms, rendering them misleading or confusing, if, indeed, intelligible.
Charge 43 is substantially similar to the charge condemned by this court in Etheridge’s Case, 141 Ala. 29, 37 South. 337. The dissent seems to have been mistaken, by counsel for appellant, for the court’s ruling.
Charge 45 is similar to charge 9 condemned in Adams’ Case, 133 Ala. 166, 175, 31 South. 851.
For the errors indicated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Dowdell, C. J., and Simpson, Anderson, Denson, Mayfield, and Sayre, JJ., concur.