Appellant was convicted of an assault with intent to murder William Sanders.

From the testimony of Parthena Lewis, daughter of the defendant, she and Sanders were seen sixty yards from the house of defendant, where the shooting occurred. It was at night and they were alone. She says: “I was sitting down, and Sanders was squatting down by me. In a short time my father came from the direction of the house. Sanders remarked: ‘Here comes the old man; ’ and jumped up, and I got up also. Sanders took me by the hand and said, 6 Come on,’ and tried to pull me along the road with him. I jerked loose, and about this time the defendant shot Sanders. Sanders used no violence towards me, nor did he treat me in any way ungentlemanly at that time or any other time. I was engaged to be married to Sanders, which was to take place in a couple of weeks, and we had been talking about our love affairs prior to the shooting. Sanders did not try to force me to go with him, but to persuade me.”

There is no proof in the record that the defendant knew of the engagement betwmen Sanders and his daughter. There are in this, as in nearly all cases, two theories. That for the State will not be discussed, as it is a well settled rule that it is the duty of the trial judge to charge the law applicable to all the phases of the case, which has any support in the evidence, or any part of the evidence. What, then, is the theory of the defense? Evidently that Sanders and the defendant’s daughter were either actually engaged in fornication, or that it was the purpose and intention of Sanders to seduce the defendant’s daughter.

Were the surrounding facts of such a character as to present this theory? The defendant, found Sanders and his daughter alone, some sixty yards from her home, at night, she sitting and Sanders squatting by her, and, when he approaches, Sanders jumps up and attempts to induce his daughter to go off with him; whereupon he shoots Sanders. LTow, we would ask if those facts were not enough to arouse the passions of the defendant to such a degree as to render his mind incapable of cool reflection ? Be this as it may, it was most clearly the duty of the court to submit this question to the jury. The jury should have been instructed that if, from the evidence, they believed that defendant had reasonable grounds to believe, and did believe, that Sanders and his daughter were, or had *120been, engaged in fornication, or that Sanders was engaged in attempting to seduce his daughter, and that thus believing his passions were aroused to such a degree as to render his mind incapable of cool reflection, and that under the influence of such passion he shot Sanders, then they should find defendant not guilty of an assault with intent to murder. We are not attempting to give a formal charge upon this subject, but merely desire to call attention to the substance of a charge which we think should have been given.

Counsel for appellant, by a special charge, called the attention of the court to this phase of the case, but the court refused his requested charge. One ground of the motion for new trial, urged by the defendant, was the failure of the court to present in its charge this theory of the case.

We are of opinion that this omission in the charge of the court is such error as to require a reversal of the judgment.

Reversed and remanded.

[Opinion delivered April 29, 1885.]