
    Caddell v. The State.
    
      Indictment for Murder.
    
    1. Organisation of j\ory; motion to quash venire. — Where in the organization of a jury to try a capital case, the fact that the same person answered to the name of “Aeey Blake” and “A. F. Blake” when called at different times, constitutes no ground to quash the venire, when it is shown that said names appearing on the venire were each intended to, and did, in fact, designate a different person.
    2. Same; same. — The fact that one of the persons who was drawn to serve on the special venire in a capital case was not summoned or was absent at the time of the trial, constitutes no ground for quashing the venire.
    3. Homicide; conspiracy; admissibility of evidence. — The defendant in a criminal case was jointly indicted with a woman for the murder of his wife and was tried separately. There was evidence tending to show that his co-defendant was his paramour; that he was at enmity with his wife; had several times threatened her life; that the deceased had commenced a prosecution against his co-defendant for living with him in adultery; that his co-defendant had lived at nis house, and, on the day of the homicide, the deceased with some' officers, having a warrant to search the woman’s trunk, came to the defendant’s house for that purpose; that when the deceased came to the house, the defendant threatened to kill her, and afterwards told his co-defendant to make the deceased get out of the house; that in talking to his wife the defendant applied a vile epithet, whereupon she exhibited a pistol and said she would kill him if he repeated the statement; that while the search was proceeding, the defendant called his co-defendant into an adjoining room and said something to her in a low tone of voice, which could not he heard by the other persons in the house, where-' upon his co-defendant returned to where the deceased was, and, after saying something to her, snatched the pistol away from the deceased and fired, inflicting the fatal wound. Held: (X.) It was competent for a witness, who testified as to his having a conversation with the defendant about the conduct of another man toward his co-defendant, to state that the defendant said to him “he would kill anybody that interfered with him and that woman.” (2.) The acts of undue and improper intimacy between the defendant and his co-defendant were admissible as tending to show his infatuation for the woman and as disclosing a motive for inciting the crime. (3.) As evidence of motive induced by actual interference, it was proper to prove the institution by the deceased of a prosecution of the woman for adultery, by introducing in evidence an affidavit and warrant in that case; and it is in the discretion of the court as to whether such evidence shall precede or come after the evidence disclosing acts of participation in the conspiracy to commit the crime. (4.) In such a case for the incrimination of the defendant as a conspirator with, or as an accomplice of, the actual slayer, it is not necessary to prove by direct, positive evidence, that he incited or encouraged his co-defendant to the killing.
    4. Insanity; competency of non-expert testimony. — On an issue of sanity vet non, a non-expert witness may give his opinion affirming the sanity of the person inquired about, without a specification of the facts upon which such opinion is based; and it is competent for such witness, who is shown to have known the person inquired about, to testify that he had never seen any indications or evidence of insanity.
    
      5. Homicide; admissibility of evidence. — Where a husband is indicted for the murder of his wife, and there is evidence tending to show unlawful or criminal relations between him and another woman, who staid at the defendant's house, and a witness has testified that the defendant and the deceased lived happily and agreeably together until said woman went to their house, it is not competent or admissible for such witness to further testify that after said -woman, went to the house, she had often seen the deceased crying; and the admission of such testimony constitutes a reversible, error.
    Appeal from the Circuit Court of Bibb.
    Tried before the Horn John Mooue.
    The appellant in this case, Festus Caddell, was. jointly «indicted with Lillian Gardner for ¡the murder-of Mamie Caddell, his wife, by shooting her with a pisco!. On motion of the defendants a severance was-had and the defendant in the present case was tried' separately, was convicted of murder in the fir sit degree- and sentenced to be hanged.
    The court ordered that fifty persons be drawn as. special jurors to serve in said cause, and that said special jurors so drawn and the regular jurors for the-week in which the case was set for trial be served upon the defendant. When the 'case was called for trial the-defendant moved the court to quash the venire upon the ground that fifty persons together with the regular jurors drawn and summoned for the week of the-trial were not contained in the venire served on the-defendant, as required by the order of the court, but only forty-nine persons’ names were contained in said venire. Upon the hearing of this motion, it was -shown that in the venire, a -copy of which had been served on the defendant, there were contained two names “A.. F. Blake, farmer, beat 9” and “Acey Blake, farmer, beat 9.” It was shown that when the name of A. F_ Blake ivas -drawn and called, he appeared and after being examined as to his competency, he was -challenged for cause. After several -other names had been drawn,, ■called and examined, Acey Blake was drawn -and -called. In response thereto the same person who had answered’ to the name -of A. F. Blake responded. In answer to questions propounded to him by the court said person stated that his name was “Acey Blake,” that he-was usually called “Acey Blake;” that the sheriff had served the summons for “Acey Blake” on him, and there was no other person residing in beat 9 named “Acey Blake;” but that another man named Acev Blake had lived in 'beat 9 until about twelve months prior to that time, when the said person named Acey Blake had moved out of beat 9 and moved to beat 10, where he was now living. Including the name of “Acey Blake” the venire served upon ■ the defendant contained the full number required by the order of the court, while excluding that name it was one short. The court overruled the motion to quash the venire, and to this ruling the defendant duly excepted.
    The State introduced the physician who attended ■[the deceased, Mamie Caddell who testified that she died on May 29, 1900, from a wound inflicted by a pistol ball. Thereupon A. P. Davidson was introduced as a witness for the State, and upon hi's testifying that he knew the defendant, he was asked the following question : “Did you ever know the defendant to make any threats against Mamie Caddell?” The defendant objected to this question because the corpus delicti had not been proven, and because the defendant had not heen shown to be in any way connected with the killing of Mamie, Caddell. The court overruled the objection, and the defendant duly excepted. In answer to this question the witness, among other things, testified that in talking with the defendant in reference to the conduct of one 'Thomas towards Mrs. Gardner, who was jointly indicted with the defendant, and upon the witness telling the defendant he was going to get into trouble about Mrs. Gardner, the defendant replied: “I •don’t give a d — . That he would kill anybody that interfered with him and that woman.” The defendant duly objected 'to this part of the witness’ testimony and moved to exclude it from the jury. The court overruled ■the objection, and the defendant duly excepted.
    Mrs. Mulkey, a witness for the State, testified that Mamie Caddell, who was the wife of the defendant, was her daughter; that she and the defendant were married in April, 1899; that she was at the house of the defendant in January, 1900. The bill of exceptions then states the further testimony of this witness as follows: “Mrs. Gardner was there. She was there ■every time I was there subsequent to the preceding Sep-teanber. Defendant and Mamie lived' happily and agreeably together until Mrs. Gardner went there. Defendant objected to this last statement and moved to-exclude it. The court overruled the objection and motion, and the defendant excepted. After Mrs. Gardner went there I would often see Mamie crying when I was. with her. Defendant objected to this statement and moved to exclude it. The court overruled the motion and the defendant excepted.” This, witness, Mrs. Mulkey, also testified against the objection and exception of the defendant to having seen acts of undue and improper intimacy between the defendant and Mirs. Gardner while they were in the defendant’s house, and that the deceased came into the room on one occasion and saw the defendant and Mrs. Gardner sitting together wiith their arms around each other. Several of the witnesses introduced for the State testified,, against the objection and exception of the defendant, to having heard the defendant make threats against his wife, Mamie' Caddell, and to having heard him tell her that he was going to kill her.
    The tendency of the evidence to show the liason between Mrs. Gardner and the defendant and a conspiracy-on the part -of her and the defendant to kill the deceased is sufficiently stated in the opinion.
    Against the objection and exception of the defendant, the State also proved that Mamie Caddell, the deceased,, had commenced a .prosecution against Mrs. Gardner for living in adultery with the defendant, by making an. affidavit before a justice of the peace, upon which affidavit a warrant was issued. This affidavit and warrant were also introduced in evidence against the objection and exception of the defendant. On the part, of the defendant, there was evidence introduced to show that Mrs. Gardner was insane.
    In rebuttal, the State introduced one Dr. Meadows,, who testified that he had been a practicing physician for seventeen years, and had known Mrs. Gardner for-mare than a year and had attended her professionally when she was sick and had seen her frequently. This witness testified that he had never seen any indications: of insanity in her. In answer to the question asked hi in. by tlie defendant on cross-examination, lie said itbat be bad newer made a special study of insanity, and knew very little about it. Thereupon the defendant moved to exclude the statement of the witness that lie bad never seen any indications of insanity in Mrs. Gardner upon the ground that be was not an expert. The court refused the motion, and the defendant duly excepted.
    J. M. McMaster, a witness for the State,
    examined in rebuttal, after testifying that be bad known Mrs. Gardner for more than a year, bad acted as her attorney and attended to lier business, and bad seen her very ■often and bad talked with lier on various occasions .and various subjects, then stated that “slie is sane. I never saw any insanity in lier.” The defendant moved ■tlie court to exclude this testimony upon tlie ground that tlie witness was not an expert and states no facts sufficient to base an opinion upon. The court refused the motion, and the defendant duly excepted.
    Gato I). Glover and W. H. Logan, for appellant.
    Tlie court erred in failing to sustain the defendant’s motion to quash the venire. — Jackson v. State, 77 Ala. 18; Ryan v. State, 100 Ala. 105; Thomas v. State, 94 Ala. 74; Roberts v. State, 66 Ala. 515; Darby v. State, 9 S. E. 515; Walker v. State, 21 S. R. 56; Wilkins v. .State, 21 S. R. 56.
    The court erred in allowing the witness Davidson to testify that be beard the defendant say that “be would kill'anybody that interfered with him and that woman.” Such threat was not directed against any particular person, nor is it shown to have been directed against the deceased. — Redd v. State, 68 Ala. 492; King v. State, 89 Ala. 146; Hanson v. State, 25 S. R. 23.
    The evidence introduced by the State as to the sanity of Mrs. Gardner and as to the witness never having seen any evidence of insanity on her part, was inadmissible. — Parsons v. .State, 81 Ala. 577; Gunter v. State, 83 Ala. 96.
    Ox-ias. G. Brown, Attorney-General, for ¡tlie State.
   SHAEPE, J.

From the facts shown in connection with the motion to quash the venire we are of the opinion that the names “Acey Blake” and A. F. Blake appearing on the venire were each intended to and did in fact designate a different person. Therefore, the case is noit brought within the principle which vitiates a special venire where ‘by repetition of names jurors are diminished below the requisite number, as in the cases of Darby v. State, 92 Ala. 9; McQueen v. State, 94 Ala. 50; Roberts v. State, 68 Ala. 515.

'The fact if it be a fact that one of those persons was not summoned or was absent at the trial was not ground for quashing the venire. — Webb v. State, 100 Ala. 47; Arp v. State, 97 Ala. 5; Johnson v. State, 94 Ala. 35; Johnson v. State, 47 Ala. 9.

The defendant was indicted jointly with one Lillian Gardner for the alleged murder of his wife. Severance was had and he was tried and convicted separately. After proving the undisputed 'fact that the deceased was killed by a pistol shot, the State introduced a witness who testified, among other things, that in a conversation about the conduct of one Thomas towards Mrs. Gardner the defendant said “he would kill anybody who interfered with him and that woman.”

Mere threats, when directed to a particular person,are not evidence of malice or evil purpose towards another, nor can threats which are. merely general be considered as menacing any particular person; but the threat in question was neither so restricted nor general. It comprehended those who might interfere with defendant’s relations with Mrs. Gardner; and if there was evidence indicating that defendant believed the deceased so interfered and that he instigated her death, the threat was competent to be shown, and the question of whether the threat applied to her was for the jury.—Ford v. State, 71 Ala. 385; Jordan v. State, 79 Ala. 9; Redd v. State, 68 Ala. 492.

The threat against whoever might inteidere with defendant and Mrs. Gardner, and likewise acts of undue intimacy between him and her were admissible as tending to show his infatuation for that woman and consequently as disclosing a motive for inciting the crime.—Johnson v. State, 94. Ala. 35. And as further evidence of motive adduced by an actual interference, it was proper to prove the prosecution for adultery, by introducing the affidavit and "warrant in that case. Evidencei of motive whether proceeding from malice or other cause is always admissible for the prosecution as making a conspiracy probable. Of itself such evidence may be insufficient, but whether it shall precede or come after that disclosing acts of participation in the conspiracy is in the discretion of the. court. Wright on Grim. Conspiracy, 214.

To the incrimination of defendant as a conspirator with, or as an accomplice of the actual slayer, direct and positive proof that he incited or encouraged her to the killing was not essential provided there was proof of circumstances from which if could .properly have been inferred that he did so.—Martin v. State, 89 Ala. 115; Jordan v. State, supra.

Here there was evidence, tending to show that Mrs. Gardner was defendant’s paramour; that he was at enmity with the deceased and had several times threatened her life; that she had commenced a prosecution against Mrs. Gardner for living with him in adultery; that on the day of the homicide, Mrs. Gardner being about to remove her trunks from defendant’s house, where she had been staying, the deceased came with an officer having a warrant to search those trunks; that when she ■ came to the house defendant threatened. to kill her and afterwards told Mrs. Gardner to make her get out; that upon his applying a vile epithet to the deceased she exhibited a pistol and said she Avould kill him if he did so again; that while the search was proceeding he called Mrs. Gardner into another room and said to her in a low Amice something others in the house could not understand, whereupon she returned to Avhere the search AA*as being conducted and after saying something to the deceased about an article some one had taken from the trunks, she snatched a pistol from the person of the deceased and shot her. This was evidence proper to be submitted to the jury on both tlie question of wbetlier tlie deceased came within tbe scope of tlie threat against tliose interfering and of whether she became a victim of that and other threats.

On an inquiry of saniity vel non the rule applicable to non-expert witnesses is that opinions opposed to sanity, are admissible only when stated in connection with the facts respecting tlie conduct abnormal or otherwise of the person whose sanity is questioned; but opinions affirming saniity.may be based on a mere negation of unnatural or peculiar conduct without a specification of facts.—Ford v. State, supra; Parsons v. State, 81 Ala. 577; Dominick v. Randolph, 124 Ala. 57. There was no infraction of the rule in the admission here of testimony on that subject.

A witness testifying for the prosecution with reference to Mrs. Gardner’s stay at defendant’s house said “defendant and Mamie [the deceased] lived happily and agreeably together until Mrs. Gardner went there.” A general objection to this being overruled the witness further testifying in the same connection said: “After Mrs. Gardner went there I would often see Mamie crying when I was with her.” The objection made to this statement though general should have been sustained. Manifestations of grief by the deceased not in defendant’s presence, were as to him res alios acta; the same as her spoken utterances would have been under like circumstances.

Though it be assumed that her grief was caused by defendant’s illicit amour, that fact except as disclosed to him could not have influenced his conduct and had no tendency to implicate him in (the killing. This testimony ivas, therefore, palpably irrelevant to the issue tried. It ivas, .however, well calculated to excite the jury to increased sympathy for the deceased, and to a correspondingly increased indignation against •the defendant. The pivotal question was whether the killing was of the slayer’s own volition or was participated in by the defendant by means of his counsel or encouragement. The determination of that question rested wholly in inference from circumstantial evidence. It cannot be seen that the illegal evidence referred to did not illegally assist the inference necessary to the jury’s finding, and, therefore, its admission necessitates a reversal of the judgment.

Reversed and remanded.  