The opinion
On Rehearing.
BROWN, Justice.
In Chaney v. State, 178 Ala. 44 , 59 So. 604 , cited to support appellant’s contention that the court erred in refusing his requested written charge 17, in passing on similar charges it was observed: “The defendant was in his place of business, and did not have to retreat. Nor did the charge have to hypothesize freedom from fault in bringing on the difficulty, as the undisputed evidence showed that the defendant did nothing to provoke the deceased before shooting. The only issue or conflict in the evidence was whether or not the deceased was making an effort to strike the defendant with the ball before the defendant shot, and which said fact was hypothesized in charges 14 and 16,'refused the defendant. These charges are practically the same as charge 7, held good upon former appeal in this case, and they should have been given.” 178 Ala. at pages 48, 49, 59 So. at page 606 .
The situation in the case at bar is quite different. The difficulty occurred in a place where the defendant was not relieved of the duty of retreating if he could do so without increasing his peril. Said charge 17 ignored this duty, and did not hypothesize defendant’s freedom from fault.
Application for rehearing overruled.
All Justices concur, except KNIGHT, J., not sitting.