We hold that Mr. Fails and Mr. Lee were "peace officers or other law enforcement officer(s)" engaged in the active discharge of their lawful duties at the time they were assaulted and stabbed by Lowe and Smith. Lowe v. State, 54 Ala. App. 280 at 283, 307 So.2d 86 at 89 (1974). The special concurrence of Presiding Judge Cates, who reached the same result that the majority of the court reached, but on a different rationale, was adopted by all the judges on rehearing.

"` "380 So.2d at 942 (quoting and adopting the reasoning of Presiding Judge Gates in his special concurrence in Lowe v. State, 54 Ala.App. 280, 285, 307 So.2d 86, 90-91 (1974), which was adopted by the court on rehearing) (emphasis added). We hold, therefore, that the guarding of a city jail by a regular municipal police officer is a `law enforcement dut[y]' within the meaning of § 6-5-S38(a).

"'" Parker v. State, 648 So.2d 653, 657 (Ala.CrimApp. 1994) (quoting Lowe v. State, 54 Ala.App. 280, 284-85, 307 So.2d 86, 90 (1974) (Cates, J., concurring specially), quoting in turn Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 372 (1918)). We decline to ignore the legislative intent expressed in the Franchise Act as a whole in favor of an isolated interpretation of the phrase "any waiver" that is required to produce the result the dissent would have us reach.

"`. . . [P]rison guards are "law enforcement officers," particularly since it is their duty to force the convicts to obey and endure the sentence of the law.'" 380 So.2d at 942 (quoting and adopting the reasoning of Presiding Judge Cates in his special concurrence in Lowe v. State, 54 Ala.App. 280, 285, 307 So.2d 86, 90-91 (1974), which was adopted by the court on rehearing) (emphasis added). We hold, therefore, that the guarding of a city jail by a regular municipal police officer is a "law enforcement dut[y]" within the meaning of § 6-5-338(a).

"`. . . [P]rison guards are "law enforcement officers," particularly since it is their duty to force the convicts to obey and endure the sentence of the law.'" 380 So.2d at 942 (quoting and adopting the reasoning of Presiding Judge Cates in his special concurrence in Lowe v. State, 54 Ala. App. 280, 285, 307 So.2d 86, 90-91 (1974), which was adopted by the court on rehearing) (emphasis added). We hold, therefore, that the guarding of a city jail by a regular municipal police officer is a "law enforcement dut[y]" within the meaning of § 6-5-338(a).

Other states have dealt with the issue of whether a corrections employee is a law enforcement officer. These states generally have dealt with this matter in two contexts: (1) whether a corrections officer employee was a law enforcement officer within the meaning of statutes relating to employee benefits, Schalk v. Department of Administration, 42 Cal.App.3d 624, 117 Cal.Rptr. 92 (1974); Kimball v. County of Santa Clara, 24 Cal.App.3d 780, 101 Cal.Rptr. 353 (1972); and (2) whether a corrections officer employee was a law enforcement officer within the meaning of statutes proscribing assault and battery upon a law enforcement officer, State v. Grant, 102 N.J. Super. 164, 245 A.2d 528 (1968); Lowe v. State, 54 Ala. App. 280, 307 So.2d 86 (1974); Bush v. State, 367 So.2d 273 (Fla.Dist.Ct.App. 1979). However, in determining whether the employee is a law enforcement officer, the courts consistently have looked at the nature of the duties of the employee.

" 'A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.' " Lowe v. State, 54 Ala. App. 280, 28485, 307 So.2d 86, 90 (1974) (Cates, J., concurring) (quoting Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 372 (1918)). When a defendant's probation is revoked, it is impossible to determine how much of that particular defendant's original sentence would have been spent in actual confinement had the defendant not been placed on probation. Any such potential determination rests upon the assumption that the prisoner would have earned the maximum amount of "good time," that he would not have had any prison disciplinary actions resulting in "good time" deductions, that the prisoner's eligibility for earning "good time" would not have changed during his sentence, and that the same "good time" administrative regulations and statutory laws would have remained in effect throughout the prisoner's entire sentence.

We also find that the requested charge was confusing and misleading. Generally, instructions to the jury should not be misleading or have a tendency to mislead, and an instruction, whether given by the court of its own motion or requested, is erroneous and should not be given where it is apt to confuse or mislead the jury. Lowe v. State, 54 Ala. App. 280, 307 So.2d 86 (1974); 23A C.J.S. Criminal Law § 1306 (1961). We believe that this charge, if given, was apt to mislead the jury.

"[I]f error existed in the comment it was cured by the court's own instructions embraced within and immediately following the comment. Lowe v. State, 54 Ala. App. 280, 307 So.2d 86 (1974). . . . .

Moreover, this ten paragraph instruction might have been properly refused because it contained misspelled words, because it had a tendency to mislead or confuse the jury, or because it placed undue emphasis on one aspect of the evidence in the case. Williams v. State, 255 Ala. 229, 51 So.2d 250 (1951); Jackson v. State, 272 Ala. 566, 133 So.2d 210 (1961); Guenther v. State, 282 Ala. 620, 213 So.2d 679 (1968), cert. denied, 393 U.S. 1107, 89 S.Ct. 916, 21 L.Ed.2d 803 (1969); Hawkins v. State, 53 Ala. App. 89, 297 So.2d 813, cert. denied, 292 Ala. 723, 297 So.2d 817 (1974); Lowe v. State, 54 Ala. App. 280, 307 So.2d 86 (1974); Baldwin v. State, 342 So.2d 940 (Ala.Cr.App. 1977). Thus, there was no error in refusing this charge.