On Rehearing. It is suggested upon rehearing that the original opinion, in dealing with the objections to the evidence of Ola Nailor, proceeds upon the idea that it related to the sayings and conduct of defendant when at her home in the afternoon and just before the killing and takes no account of the objections and exceptions to what she states as to what occurred during the first visit; that is, in the morning. There was no error in permitting this witness to testify that defendant told deceased he was going to kill him. This same witness was asked by the solicitor, "Did he go away?" Answer, "Willie walked off by him, and him with his gun drawed on him in the yard at my house." This evidence was not responsive to the question which was asked by the solicitor and not the defendant's counsel, and the only ground in the motion to exclude the same was because not responsive, and not because it was illegal or incompetent. It is a well-settled rule that only the party asking the question can move to exclude a nonresponsive answer upon the sole ground that it is not responsive. Patrick v. State, 18 Ala. App. 335,92 So. 87, and cases there cited. Moreover, we are not persuaded that this evidence violated the rule against going into the particulars of a previous difficulty. The fact that defendant drew his gun on the deceased did not involve the merits or details of a former difficulty, but was in the nature of a threat or menace. Threats are admissible and they can sometimes be made by acts or conduct as well as by words. We repeat that the record in this case discloses no reversible error on the part of the trial court, and the application for rehearing is overruled.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.