
    Roberts v. The State.
    
      Indictment for Murder,
    
    1. Grand jurors in Monroe and Wilcox, under special statute, — Under the special statute approved February 13th, 1879 (Session Acts 1878-9, p. 204), the number of persons required to be summoned as grand jurors, in Monroe and other counties therein named, was reduced to fifteen ; and the record in this case shows with suificient certainty, as held at the last term, on a former appeal, that the grand jury was organized with twelve of the persons originally summoned, and three others from the six talesmen.
    2. Objection to venire, on account of disqualification of persons summoned as jurors. — -When the sheriff summons disqualified persons as jurors on a special venire, this is no ground for quashing the venire, though the disqualification is good ground of challenge for cause; nor would a different rule prevail, if the disqualification was known to the sheriff when he summoned them, unless the record shows that, without the disqualified persons, there was not a sufficient number of good and lawful men, from whom an impartial jury might be chosen.
    3. Summons of less persons than named in venire. — If the order of the court, in a capital case, requires the sheriff to summon one hundred persons as special jurors (Code, § 4874), and he summons only ninety-nine, this is good ground for quashing the venire; and though the error was caused by the repetition of one name, making the apparent number one hundred, this is not a “mistake in the name of a person summoned as a juror,” which is declared to be “not sufficient cause to quash the venire” (Code, § 4876), but is a failure on the part of the sheriff to comply with a judicial order, which confers substantial rights on the defendant.
    4. Challenge of juror for cause; when interposed. — When a disqualified person is accepted as a juror, but his disqualification was not known at the time, or was concealed, without lack of diligence to discover it on the part of the objector, he may be challenged for cause at any time before he is sworn; but the challenge comes too late after he has been sworn, unless the disqualification originated after he was sworn.
    5. Oath of petit jury. — In a criminal case, if the judgment entry recites, simply, thar the jury “was duly sworn,” or, “was sworn according to law,” not setting out the oath, this is suificient, and it is the safer practice to pursue.
    6. Objection to question and answer. — The refusal to allow a question to be asked, is nota reversible error, when the record does not show what was proposed to be proved by the answer, and the question is so general that the court can not see that the answer, if allowed, would have been relevant, material, or beneficial to the party asking the question.
    7. Declarations of party; admissibility of. — The .declarations of the defendant, in exculpation of his conduct, are not competent evidence for him, unless they constitute a part of the res gestee.
    
    8. Evidence of deceased witness. — The testimony of a witness since deceased, taken on the preliminary examination of the defendant before a magistrate, and by him committed to writing at the time, though not signed by the-witness, is competent evidence against the defendant on his trial, on proof of its correctness by the magistrate.
    9. Previous threats by deceased against defendant. — Previous threats made by the deceased, however violent, “will not, of themselves, excuse' the killing, but there must have been some words, or overt act, at the-time, clearly indicative of a present purpose to do the defendant some injury.”
    Ebom the Circuit Court of Monroe.
    Tried before the Hon. H. T. Toulmin.
    The indictment in this case charged, in a single count, that the defendant, Charles Roberts, “ unlawfully and with malice aforethought killed Duncan Rankin, by shooting him with a gun; against the peace,” &c. On his first trial under this indictment, the defendant was convicted of murder in the first degree, and sentenced to imprisonment in the penitentiary for life ; but the judgment was- reversed by this court, on a bill of exceptions reserved by him, and the cause was-remanded, as shown by the opinion delivered at the last term, ante, pp. 156-66.- On the second trial, as the bill of exceptions in the present record shows, the defendant moved to quash the indictment, on account of defects in the organization of the grand jury; and, in support of this motion, read in evidence, from the records of the court, the minute-entries relating to the formation of the 'grand jury, in the same words as shown on the former trial; and' the State introduced as a witness the clerk of the court, who testified in explanation of said minute-entry as on the former trial. — See the report of the ease on the appeal at the last term {ante, pp. 156-66), where the facts are stated at length. The defendant objected to the testimony of the clerk, and reserved an exception to its admission ; and he also excepted to the overruling of his motion to quash the indictment.
    Before entering on the trial, the defendant moved to quash the special venire of jurors summoned for his trial, on these grounds: “ 1st, that said venire is not a fair and impartial one; 2d, that near kin of the deceased were summoned on said venire; 3d, that four persons who, as jurors on the former trial, had tried the case, were summoned on said venire; 4th, that a witness in the case for the prosecution, and a member of the grand jury by which the indictment was found, wer'e summoned on said venire; 5th, that one hundred persons, including the regular jurors for the week, are not contained in said venire, and were not served on this defendant, as required by the order of the court made on a previous day of this term, only ninety-nine names being contained in said venire and list.” In support of this motion, the defendant offered in evidence the venire, and the copy thereof which had been served on him; each of which purported to contain the names of one hundred persons, but really contained only ninety-nine, the name of B. W. Mosely being twice repeated ; and he also submitted his own affidavit, mentioning the names of the persons alleged to be incompetent to serve as jurors, specifying the cause of incompetency in each case, and averring that such incompetency was known to the sheriff when he summoned them. On the part of the State, an affidavit of the sheriff was submitted,' explaining the repetition of Mosely’s name by inadvertence, he being a regular juror for the week, and also summoned as a special juror. “This was all the evidence before the court, on said motion to quash the venire; and thereupon the court overruled the motion, and the defendant excepted.”
    “ In the eourse of impanelling the jury,” as the bill of exceptions further recites, “ the name of one Seymore, one of said venire, was drawn from the hat, and he was sworn to answer questions, touching his qualifications as a juror ; and he answered, that he had not a fixed opinion' against capital or penitentiary punishment, but would not eonvict on circumstantial evidence unless it was very strong. The State waived any objection on that ground, and accepted said Seymore as a juror, and the defendant also accepted him; and thereupon the clerk handed him the Bible, and he took it in his right hand, while the clerk repeated the oath to him ; and after the oath had been repeated to him, and before he had kissed the book, said Seymore said, “ Fes, to the best of my ability, but I ivill not convict capitally,” and put down the book. Thereupon, on behalf of the State, the solicitor asked said Sey-more what he meant by that; and Seymore replied, that he was opposed to capital convictions, especially on circumstantial evidence; and on further examination, both by the solicitor and the defendant’s counsel, he said,.that he would do the best he could. The State then challenged said Seymore for cause, peremptorily, and the court allowed the challenge, and ordered said Seymore to stand aside; ” to which action and ruling of the court the defendant duly objected and excepted.
    “ Evidence before the jury tended to show that said Bankin, the deceased, was killed in July, 1879, on a Monday evening about five o’clock; that he was shot by the defendant, from the store of Slaughter & Bives, and through a window that was at the time shut down; that defendant was not seen by any one at the time, but' the evidence tended to show that some time after the killing, said-that ‘ he did it — that he had made up his mind two or three (?) before to kill the deceased, and would have shot him before, but other persons were in the way, and he was afraid he might shoot them’; and he said that he was afraid of the deceased. The evidence showed, also, that the deceased, when he was shot, was some fifteen or twenty steps from the store, and was going towards it; that he was in his shirt sleeves, was unarmed, and saying nothing at the time; that he had been in company with several persons, some fifty or sixty yards from the store, a few minutes before the killing, and told one Loughry, who was a maker or repairer of watches and clocks, that he wanted him .to repair his clock, that it was over at the store of Slaughter & Rives, and he would go and get it; and that he immediately walked in the direction of the store, and was shot down as above stated. The evidence tended to show, also, that the deceased was calm and unexcited at the time ; also, that for some months before the killing, and up to about one week before, the defendant had lived in the saíne house with the deceased and his wife, who had separated some few weeks before the killing; that on the day before the killing, and the .Saturday before, the deceased had made some threats against the defendant, and seemed to be somewhat excited. Evidence before the jury tended to show, also, that the defendant was a watch-mender, and carried on his business in the back part of the store of Slaughter & Rives, and was in charge of said store on that day; that the deceased had been to said store three or four times on the day of the killing; that a loaded gun was usually kept in the back part of the store; and that the deceased, on one of the occasions when he came into the store on that day, inquired for kerosene oil,” and looked about the store, behind barrels &o., as if looking for kerosene or something else. In this connection, defendant asked Charles Slaughter, the clerk in the store of whom the inquiry was made by the deceased, “Did you, or not, tell the defendant that ycy^- believed Rankin was looking for the gun?” The court sustained an objection to this question, and the defendant excepted. Said witness having stated that he saw Rankin, on the morning of the day on which the killing occurred, coming towards the store with his sleeves rolled up, defendant asked him this question, “Did the defendant call your attention to the fact that Rankin was coming towards the store with his sleeves rolled up ? ” The court sustained an objection to this question, and the defendant excepted.
    “ It was shown in evidence also, by the testimony of one J. M. Slaughter, that said Rankin (deceased) told him, on the Saturday before the killing, that if defendant did not leave that neighborhood, and that damned quick, he would kill him ; that said Rankin, immediately afterwards, stepped to the back part of the.store, where the defendant was, and he and defendant stepped out of the back door of the store, and bad a short conversation; that defendant then came back into the store, looking very pale, and with tears running down his cheeks; and that witness met him on his return into the store, and he told witness what Baukin had said to him. Defendant then asked’said witness this question, ‘State what the defendant told you, on his return into the store, Bankin had said to him.’ . The State objected to this question, and the court sustained the objection ; to which the defendant excepted.”
    Said J. M. Slaughter further testified, that he went to Bankin on the Saturday evening when these threats were made, and remonstrated with him abo-ut making such threats, “ and told him that he ought to take it back, and ought to tell the defendant so; that Bankin replied, ‘ he would be damned if he would, but that he (witness] might tell defendant he had withdrawn his threats and would not hurt him; and that he (witness) then went to defendant, and told him that Bankin said he had withdrawn the threats and would not hurt him, and that he (witness) had'never known him 10 tell a lie. It was further in evidence, by said witness, that defendant got a horse that Saturday evening, and rode away from the store, and did not return until the next day;” and the witness was then asked by defendant these questions : “'Why did defendant leave the store that evening?” “ State the circumstances which caused the defendant to leave the store that evening?” “ State the circumstances within your knowledge which led the defendant to leave the store that evening?” To eaeh of these questions an objection was interposed by the State, and was sustained by the court; and to each of these rulings exceptions were reserved by the defendant. The witness was then asked to state “ under what circumstances did the defendant leave the store that evening and answered, “ He left there because he was afraid of Bankin.” The court sustained an objection to this answer, and excluded it: to which the defendant excepted. This witness having stated, on cross-examination by the State, that he informed defendant’ that Bankin had withdrawn his threats to kill him ; he was asked by defendant, “ What did he, defendant, say in reply to this?” The court sustained an objection to this question, and the defendant excepted. “ It was in evidence, also, that Bankin had gone to his store, which was shut up, two or more times on the day of the killing. The defendant asked a witness, what business said Bankin had been engaged in; to which question the court sustained an objection by the State, and the defendant excepted.”
    “ The State offered in evidence the deposition of one J. T. Locklin, taken on the preliminary examination of the defendant before a magistrate ; and the magistrate before whom it was taken, being introduced as a witness, testified, that said Locklin was sworn as a witness on said examination, and examined in the presence of the defendant, and testified as stated in said deposition; that said deposition was taken down under his direction,'in the words of the witness, and that said Locklin was dead. Said deposition was not signed by said Locklin, and the defendant objected to said deposition going before the j ary as evidence, because it was not signed by.said Locklin; which objection the court overruled, and permitted said deposition to go before the jury as evidence ; to which the defendant excepted.”
    “ The court charged the jury, among other things, that previous threats made by the deceased, howsoever violent, will not, of themselves, excuse the killing, but there must have been some words, or overt act, at the time, clearly indicative of a present purpose to do the defendant some injury. To this charge the defendant excepted.”
    S. J. CuMMiNG; for appellant.
    1. The motion to quash the venire should have been sustained. In summoning a special venire, in a capital case, the sheriff discharges a common-law duty, and his acts are subject to all common-law objections and exceptions. At common law, the power of selection was confided almost wholly to the sheriff, and there was no proceeding similar to what is now known as the making of the jury list. A motion to quash the venire, under modern practice, is equivalent to a challenge to the array at common law ; and it includes both the principal cause of challenge to the array, and challenge to the favor. The defendant’s affidavit, which is uncontradicted, except by the counter affidavit of the sheriff as to the juror Mosely, shows that the sheriff, willfully and intentionally, summoned as jurors persons who were not only incompetent, but were known by him tó be disqualified — near kinsmen of the deceased, witnesses for the prosecution, jurors who had tried the case before, and one of the grand jurors by whom the indictment was found. This was good'ground of challenge to the array at common law, and is good cause for quashing the venire. — Co. Litt. vol. 1, book 2, sec. 234, p. 154 b. Another fatal defect in the venire, for which it ought to have been quashed on motion, was that, while the order of the court required one hundred persons to be summoned, only ninety-nine vrere in fact summoned, and included in the list served on the defendant. This was matter of substance, and the objection was properly taken. In support of the motion to quash, the following authorities are relied on : 2 Bla. Com. 359-60 ; 1 Chitty’s Crim. Law,' 536-40; Prince v. State, 2 Stew. & P. 262 ; Parsons v. State, 22 Ala. 50; Gray v. State, 55 Ala. 86; Bell v. State, 59 Ala. 55 ; Nutt v. State, 63 Ala. 108.
    2. The court erred in permitting the juror Seymore to be challenged. He had answered, when examined on his voir dire, “ that he would not convict on circumstantial evidence, unless it was very strong.” If this showed good ground of challenge by the State, the objection was waived by accepting him ; and having been also accepted by the defendant, and sworn, he could not be afterwards challenged. — Co. Litt. 158 a;. 2 Hawk. P. C. 568; Williams v. State, 3 Stew. 454; State v. Moore, 2 Ala. 27 5 ; Stalls v. Sfate, 28 Ala. 25 ; Murphy v. State, 87 Ala. 142; Lyman v. State, 45 Ala. 72; Blur-ray (& Bell v. State, 48 Ala. 675 ; Smith v. Smith, 55 Ala. 1; Spigener v. State, 62 Ala. 383 ; Bash v. State, 61 Ala. 90.
    3. The oath administered to the jury, as set out in the record, is not a substantial compliance with the requirements of the statute. — Mitchell v. State, 58 Ala., where all the cases are cited. '
    4. The exceptions reserved to rulings on evidence, and to the general charge of the court, are submitted on the facts shown by the record, and the law applicable to the case.
    H. C. Tompkins, Attorney-General, for the State.
    The question raised by the record, as to the organization of the grand jury, was decided adversely to the appellant on his former appeal. — Roberts v. State, at the last term.' The motion to quash the venire, because incompetent jurors were summoned on it, was properly overruled, on the authority of Gray v. State, 55 Ala. 86; Commander v. State, 60 Ala. 1. The Second ground of objection, based on the repetition of one name, was equally untenable. — Code, §4876; Floyd v. State, 55 Ala. 61; Bash v. State, 61 Ala. 89. The challenge of Seymore as a juror, under the facts stated in the bill of exceptions, was properly allowed.' — Smith v. State, 55 Ala. 1; Sparks v. State, 59 Ala. 82; Bash v. State, supra,; 2 Hawk. P. C. 568, 571; 5 Bacon’s Abr. 365, (11); Bristoio v. Commonwealth, 15 Gratt. 634; 12 Gratt. 689. The testimony of Lock-lin, on the preliminary examination, was properly received. 1 Phil. Ev. 369; Davis v. State, 17 Ala. 354 ; Tharp v. State, 15 Ala. 749 ; Marler v. State, 67 Ala. 55; Horton v. State, 53 Ala. The charge- of the court, as to the previous threats, was correct. — Wharton’s Crim. Ev. §§ 84, 757 ; Meyer v. State, 33 Texas, 525; Evans v. State, 44 Miss. 762 ; Neto-
      
      comb v. State, 37 Miss. 383 ; Garroll v. State, 23 Ala. 28; Hughey v. State, 47 Ala. 97.
   SOMERVILLE, J.

The objections raised to the organization of the grand jury in this case were considered, when .the case was last here by appeal, at the December term, 1880. We are satisfied, without further discussion, that the conclusion then reached by us was correct, and that these objections were not well taken.—Roberts v. State, at the last term; Acts 1878-9, p. 204.

The fact that the sheriff summoned on the special venire incompetent jurors who were disqualified to act, for any reason, statutory or otherwise, was no ground for quashing the venire. Such disqualifications would only furnish grounds upon which to challenge for cause.—Gray v. State, 55 Ala. 86. Nor would the rule be otherwise, even if such disqualification was hnoion to the sheriff at the time he summoned them, unless it appears from the record that, without them, there was not a sufficient number of good and lawful men, from whom an impartial jury could be selected.—Commander v. State, 60 Ala. 1.

The motion to quash the venire should', however, have been sustained, very clearly, upon another ground specified in the record. The list of special jui'ors, ordered by the court to bé summoned, contained the names' of only ninety-nine, instead of. one hundred persons, the name of the same person appearing tioice in the list. The prisoner was on trial for a capital felony, and in actual confinement. He was, therefore, entitled, as matter of right, to the benefit of those statutory provisions which are designed as safeguards to the security of a fair and impartial jury trial, such as the constitution intends to guarantee. The statute is mandatory, that in the trial of capital offenses, “ the court must make an order, commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those summoned on the regular juries of the week, or term when the term does not exceed one week.”—Code 1876, § 4874. This order was made by the court, and the number was fixed at one hundred, as a proper number of persons to constitute the special venire in this case. So long as this order remained unrevoked, the prisoner had the lawful right to insist that the venire should be constituted in accordance with such judicial direction. To have summoned ninety-nine persons, was just as much a violation of this order, as to have summoned fifty-nine, the difference being in degree only, and- not in the matter of spirit or substance. So, likewise, the statute is mandatory, and not directory merely, that in such cases, “ a copy of tbe indictment, and a list of the jurors summoned for Ms trial, including tbe regular jury, must be delivered to him [tbe prisoner] at least one entire day before tbe day appointed for bis trial.”—Code 1876, § 4872. Tbis list should have been one constituted in accordance with tbe mandate of tbe court. It should have contained tbe names of one hundred persons, and not of any less number. This was very important to tbe prisoner, as affording him “ tbe opportunity of ascertaining whether causes for challenge existed ; and, also, for tbe purpose of enabling him to exercise, understanding^, the privileges conferred upon him as to peremptory challenges.”—Parsons v. The State, 22 Ala. 50. The above statutes have ¡beemconstrued by tbis court not to be directory merely, but as conferring benefits which are matters of right; and a failure to comply with them, if not waived.by the defendant in the court below, constitutes such error as to authorize the reversal of a judgment of conviction on appeal to this court.—Williams v. State, 48 Ala. 85; Nutt v. State, 62 Ala. 180; Bell v. State, 59 Ala. 55; Parsons v. State, supra.

The above defect is not cured by the influence of section 4876 of the Code, which provides that “ a mistake in the name of any person summoned as a juror for the trial of a capital offense, either in the venire, or in the list of jurors delivered to the defendant, is not sufficient cause to quash the venire, or to delay or continue the trial, unless the court, in its discretion, is of opinion that the ends of justice so require.” When there is a mere mistake in the name, by reason of erroneous orthography, or otherwise, the names of such persons may be discarded, and others summoned to supply their places. But the error in this case is not a mere mistake in the name of one summoned as a juror ; it is a failure of the sheriff to comply with a judicial order made for the organization of a legal jury.—Hall v. State, 51 Ala. 9; Floyd v. State, 55 Ala. 61; Rash v. State, 61 Ala. 89.

Our conclusion is, that the court erred in not sustaining the motion to quash, so as to have ordered a venire de novo.

We think the rule is settled by the decisions of this court, as well as by the principles of criminal procedure at com*. mon law, being applicable alike to misdemeanors and felonies, that, where a juror is disqualified to serve, and such disqualification was not known at the time of his acceptance, or. was concealed, without lack of diligence to discover it on the part of the objector, he may be challenged for cause at any time before he is sworn. There was, for this reason, no error in permitting the State’s solicitor to challenge Seymore, as his disqualification was not disclosed on his voir dire, but only while in the act of taking the required oath. The qualification attempted to be affixed to the oath was tantamount to a refusal to take it. Hence, he had not been sworn when challenged.—1 Bish. Cr. Proc. § 932; State v. Croome, 10 Iowa, 308; Smith v. State, 55 Ala. 1; Sparks v. State, 59 Ala. 82; Spigener’s case, 62 Ala. 383, 387. The rule is different, however, after a juror has not only been accepted, but has been sworn (Rash v. State, 61 Ala. 90); unless he has been excused or challenged by consent, or the cause be one that has originated since he was sworn.—Hawkins P. C. 568.

The oath administered to the jury in this case was, “to well and truly try the issue joined between the State and the prisoner.” It is insisted that this was not a substantial compliance with the statute, because it omits the sentence, “ and a true verdict render according to the evidence, so help you God.”—Code, § 4765. It is unnecessary to decide the point, which, in effect, is differently decided in the case of Edwards v. State, 49 Ala. 334, and that of Gardner v. State, 48 Ala. 263. The conflicting authorities are sought to be reconciled in Mitchell’s case, 58 Ala. 417, where the true construction of the statute is probably stated by Mr. Justice MANNING. We dismiss this particular subject, with the observation, that it is sufficient, if the entry shows, simply, that the jury was “ duly sworn,” or was “ sworn according to law;” and this is the safer practice, as being more likely to avoid a technical error, the commission of which has brought to this court a multiplicity of cases, and has thereby greatly delayed the speedy administration of justice.—Mitchell’s case, supra.

We can not see that the court erred, in excluding the question propounded at the instance of the accused, asking “ luhat business Eankin ” [the deceased] “ had been engaged in ?” The question was not answered, nor was it stated what was proposed to be proved in response to it. It was too general, moreover, to authorize us to infer that the answer, if allowed to be made, would have been either relevant, material, or beneficial to the defendant.—Stewart v. State, 63 Ala. 199; Man. Co. v. Gibson, 62 Ala. 369; Hirschfelder v. Mitchell, 54 Ala. 419; Burns v. State, 49 Ala. 371.

There was no error in the other rulings of the court on the evidence. The questions proposed to the witness Slaughter were either leading, or sought to elicit mere opinions of the witness; or else to introduce the defendant’s own declarations, in exculpation of his conduct, which could not be done, unless they constituted a part of the res gestae.—Billingslea’s case, at present term; Stewart v. State, 63 Ala. 199; Burns’ case, 49 Ala. 370; Wharton’s Cr. Ev. § 457; Gassenheimer’s case, 52 Ala. 314.

The testimony of the deceased toitness, Locklin, taken on the preliminary investigation before the magistrate, was clearly admissible on the trial in the Circuit Court, it was reduced to writing at the time the witness deposed, and, though not signed by him, was proved by the magistrate himself to have been correctly taken, under the direction of the witness, and in his words. Locklin being dead, it was competent to introduce any witness who heard his statements before the committing magistrate, for the purpose of proving them.—Wharton’s Cr. Ev. 227; Horton v. State, 53 Ala. 489; Marler v. State, at the last term; Davis v. State, 17 Ala. 354.

The charge given by the court was a correct exposition of the law.—Roberts v. State, at the last term; Whart. Cr. Ev. § 757.

For the refusal of the court to sustain the motion, made by the prisoner, to quash the venire, as above stated, the judgment of conviction in this cause must be reversed, which is accordingly hereby done, and the cause is remanded for further proceedings. The prisoner will, in the meanwhile, be retained in custody, until discharged by due course of law.  