The opinion
On Rehearing.
On application for rehearing counsel states in brief: “I was of the opinion that: the Supreme Court was the final judge on such matters and that the Court of Appeals, had to follow more or less what the Supreme Court rules * *
In preparing our original opinion we did not lose sight of our obedience to the authorities of the Supreme Court, and the opinion is not susceptible of a contrary view.
Counsel’s criticism is based on the conclusion we reached that appellant’s written charge number 12 was properly refused. We did not overlook the holding in Smith v. State, 86 Ala. 28 , 5 So. 478 , 479. The charge in the Smith case was approved in consonance with the facts there appearing. The court observed: “That (testimony) of the accused, in addition to another grave provocation, tended to show that he acted only in prevention or defense of a very dangerous assault about to be committed on him by the defendant.” (Emphasis ours.)
As we pointed out in the original opinion, as applied to the facts in the case at bar the charge was abstract and without application. Therefore, the holding in the Smith case is not influencing nor controlling.
To respond to the other urgencies made in the application for rehearing would be in effect a repetition of the views set out in the original opinion.
The application for rehearing is overruled.