The evidence was in conflict; that for the state making out a clear case of guilt under the indictment, and that for the defendant tending to prove to the contrary. Refused charge 2, being the affirmative charge, was therefore properly refused. Tatum v. State, 20 Ala. App. 436, 102 So. 726.
Refused charge 3 had reference to a count of the indictment of which the defendant was acquitted; he cannot therefore complain. Pippin v. State, 19 Ala. App. 384, 97 So. 615.
The defendant having brought out a part of a conversation between the witness Lisle and defendant, the state was entitled to everything said in the conversation. Moreover, after carefully reading this record, we are of the opinion that this answer to which exception was taken did not affect the merits of the case.
We find no error in the record, and the judgment is affirmed.
Affirmed.