1. The verdict in this case was defective, and could not be' the legal predicate of a sentence, because it does not specify the degree of murder of which the accused was guilty. — Johnson v. State, 17 Ala. 618; Cobia v. State, 16 Ala. 781. Eor the error of rendering judgment on the insufficient verdict, there must be a reversal; and we shall proceed to announce our opinion as to the material questions of law presented by the bill of exceptions, for the guidance of the court on another trial.
2. Without deciding that the personal presence of the prisoner, when a day was set for trial, and the number of jurors prescribed, was indispensable, we express the opinion, that it is the safer and better course to have the prisoner in court when such orders are made, and that the record should so affirm. — 1 Bishop on Criminal Procedure, §§ 682-6; Henry v. State, 33 Ala. 389.
3. If the accused was in actual confinement, the law requires that a copy of the indictment, and a list of the jurors, should be delivered to him, at least one entire day before the day appointed for the trial. — Penal Code, § 619. That any of the jurors were incompetent, because they were not residents of the county, was a legal cause of challenge by either party; but we do not think that the summoning, through inadvertence, of those non-residents of the county, gave to the defendant a right to demand of the court, beyond the control of its discretion, that the entire list should be set aside. — Bill v. The State, 29 Ala. 34, and authorities cited in the opinion ; Penal Code, § 628; McCarty v. The State, 26 Miss. 299.
*7064. The court committed no error in refusing to permit the prisoner to prove his conduct and statements upon the occasion of his meeting his sister, on her arrival with the messenger who had been sent for her. We declare the inadmissibility of such evidence, on the ground stated in Campbell v. State, 23 Ala. 44, 79. See, also, Johnson v. State, 17 Ala. 618.
5. The supposition of the witness, that the negro Herod was at work at the iron-works, was not evidence.
6. The question of the prisoner, as to husbands in the neighborhood milking cows for their wives, was altogether irrelevant to the issue. It would only be admissible in cross-examination, for the purpose of testing the correctness, fairness, and credibility of the witness; and we think that the extent to which such questions should be allowed, for such a purpose, must be left to the enlightened discretion of the presiding judge. — 1 Greenleaf’s Ev. § 449.
7-8. It was permissible for the State to prove an improper intimacy between the defendant and a woman other than his wife. — Johnson v. State, 17 Ala. 618; State v. Watkins, 9 Conn. 47; Wharton’s Amer. Crim. Law, § 639. Upon the cross-examination of the witness by whom this proof was made, the accused was not legally restricted from propounding questions which tended to degrade or bring shame on the witness. The restriction of the rule relates to questions, the answers to which may criminate the witness. — 1 Greenleaf on Ev. § 454.
9. The court charged the jury, in effect, that if they found, from the evidence, that the deceased was found in her bed, in her own house, with her throat cut, and another wound inflicted on her person, they would be authorized to find all the requisites of the crime of murder in the first degree. This charge was erroneous, because it excluded from the jury the consideration of the questions, whether the death was the result of suicide, and whether it had not resulted from a conflict which would reduce the crime to a lower grade than murder in the first degeee.
10. We think the charge as to the effect of circumstantial evidence was correct. If circumstantial evidence is such as to produce a conviction of guilt upon the juror’s *707mind, beyond a reasonable doubt, it is as ' much his duty to find a verdict of guilty, as if the evidence had been positive and direct.
11. The benefit of a good character to a defendant is not restricted to cases where a doubt of the defendant’s guilt may exist. The correct rule, as to the consideration to be given to the good character of the accused in a criminal case, is laid down in Felix v. State, 18 Ala. 720. See, also, Rosenbaum v. State, 38 Ala. 354.
12. "We do not think there was any error in the charge, that the absence of “proof” of any other guilty agent, was a circumstance to be considered by the jury, as evidence “ against the defendant.” We think that the phraseology selected by the court puts the point in a strong light against the defendant. The word “ proof ” is sometimes used in a sense, which, if accepted by the jury as having been intended by the court, might have misled them to the prejudice of the defendant. The better word, we think, would have been “ evidence.” Peradventure, there might have been evidence of some other guilty agent, strong enough to generate a doubt of the defendant’s guilt, and yet not strong enough to amount to “proof”, when used in the sense of evidence of that degree which convinces the mind of the certainty of a fact. Proof, however, is often used as the synonym of evidence. The charge was, therefore, only objectionable for its tendency to mislead ; and it was for the defendant to request an explanation, which would no doubt have been cheerfully given.
, When a homicide has been committed, and the circumstances tend to show that the accused was the perpetrator, then the absence of evidence of any other guilty agent is a circumstance which may be weighed and considered as evidence against the accused, upon the question, whether he committed the homicide. This is what we understand was intended to be asserted by the charge, and what was most probably understood to have been asserted by it. The charge, being given in the hurry of the occasion, omits to designate in terms the question upon which the absence of testimony as to the guilt of some other person would be evidence against the accused. In that particular, it might be im*708proved in clearness and precision, and more satisfactorily freed from liability to mislead the jury. There are questions in the case upon which the absence of such testimony would not be evidence against the defendant. For example, it was incumbent upon the jury to ascertain how the death of the decedent was caused; whether by violence inflicted by her own hand, or by the hands of another; and also to ascertain, if they found the accused to be the perpetrator, in what degree he was guilty. — Wills on Cir. Ev. pp. 202-7; 1 Greenleaf on Ev. p. 18, § 18a; Starkie on Ev. part 3, § 77. The weight of the absence of such evidence is increased, by the probability that, if any other person had perpetratrated the deed, there would have been discoverable traces of it. “ In a criminal case, where all the circumstances of time, place, motive, means, opportunity, and conduct, concur in pointing out the accused as the perpetrator of an act of violence, the force of such circumstantial evidence is materially strengthened by the-total absence of any trace or vestige of another agent, although, had any other existed, he must have been connected with the perpetration of the crime by motive, means, and opportunity, and by circumstances necessarily accompanying such acts which usually leave manifest traces behind them.” — Starkie on Evidence, part 3, § 71.
It is not clear that the bill of exceptions shows, with sufficient certainty, that the charges in writing given by the court were excepted to. Without consideration of that question, we have presented our view of the law applicable, so far as we deemed necessary for the guidance of the court on another trial.
As all the evidence is not before us, we are not able to decide certainly -whether the charge asked, as to a conviction on the testimony of an accomplice, was abstract, and properly refused on that ground. It but enunciates the law, as laid down in section 641 of the Penal Code, and should have been given, if not abstract.
The judgment of the court below is reversed, and the cause remanded; but the prisoner must remain in custody until discharged by due course of law.