The rulings of the court on the admission of evidence were without prejudicial error.
Refused charges 1 and 2 are abstract and not properly given in a case of this kind. True, assault and battery, being a lesser offense, is comprehended in an indictment charging murder, but if the defendant is guilty of assault and battery and death ensues as a result thereof, within a year and a day, the crime cannot be less than manslaughter.
Refused charge 6 was covered by the other given charges. Refused charge 10 is argumentative and tends to mislead. Refused charges 11, 14, 17, and 20 are invasive of the province of the jury.
*88 When a person is placed on trial charged with a criminal offense, he is presumed to be innocent until the presumption is overcome by the evidence beyond a reasonable doubt. This presumption must be regarded by the jury as evidentiary, and attends the defendant until the evidence in the case overcomes the presumption by proof of defendant’s guilt beyond a reasonable doubt. The defendant is entitled to have the jury so instructed. Diamond v. State, 15 Ala. App. 33, 72 So. 558. Certiorari denied Ex parte State, 198 Ala. 702, 73 So. 1002. Refused charge 18 should have been given, and its refusal was error.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.