An application for a change of venue, in a criminal case in this State, no longer rests in the discretion of the court. If denied on a proper application, it is *74treated as an error, for which, after conviction, the judgment will be reversed on appeal, or, before trial, the defendant may obtain the benefit of such an application by mandamus — Ex parte Chase, 43 Ala. 303; Murphy & Ashford v. The State, at January term, 1871.
The application of the defendant in this case was made in proper time, and his affidavit, upon which it was made, contains all that the statute requires on such an application. It states that he could not have a fair and impartial trial for the offense with which he was charged in the county in which the indictment was found, for the reason that he had been published and posted in the newspapers of said county as a murderer and horse-thief, and that there was great excitement and prejudice in the minds of the people of said county against him in consequence thereof.
Copies of the publications referred to are made parts of said application, and it seems to us they might well have produced the excitement and prejudice complained of.
The opposing affidavit of the several persons, offered by the State, does not deny the existence of the alleged excitement and prejudice against the defendant, or that the said publications were not made, but only that affiants had never heard of, or read in any public newspapers of said county, that said defendant had been published as a murderer or horse-thief; and that they did not believe there was any such prejudice or excitement against him as would deny him a fair and impartial trial. Admitting the truth of said affidavit, it does not prove that said publications were not made, but only that said affiants had not heard of or read them; neither does it disprove that great excitement and prejudice existed against the defendant, but only that they did not believe there was any such prejudice or excitement as would deny him a fair and impartial trial.
To decide that an application for a change of venue may be defeated by an affidavit of this sort, will be to make a precedent by which this great right and privilege of accused persons may be rendered almost worthless; for it will seldom happen that persons may not be found who will, and honestly, too, believe, whatever may be the excitement in *75any given ease, that, notwithstanding, the party against. whom it may exist can have a fair and impartial trial. We think the venue should have been changed in this case, and that the overruling of the application for that purpose is an error for which the judgment must be reversed.
2. The motion of the defendant to quash and set aside the venire, or list of jurors summoned for the trial, &c., because pne of said jurors had been a member of the grand jury by which the indictment was found, and was present when the witnesses were examined in the case, and found and returned the indictment into court, a true bill, &c., was • properly overruled.
We are unwilling to hold, that the incompetency of one of the persons named in the list of jurors served on the defendant in a capital case, or the fact that he is shown to be an unfit juror, in the particular case, is a sufficient reason to quash and set aside the panel or list of jurors served on the defendant.
The remedy of the defendant, in such a case, is to challenge the objectionable juror fox cause, if he is put on him as one of his triers, or, it may be, to move the court to direct the name of such person to be discarded, and another person to be forthwith summoned to supply his place.— Rev. Code, § 4175.
In the absence of fraud or improper conduct on the part of the officer by whom the jurors are elected and summoned, the panel or list of jurors should not be quashed or set aside, because an improper, incompetent, or unfit person has been summoned as one of the list of jurors served on the defendant.
3. The challenge of the defendant of the juror Geo. W. Tanner, for cause, because he was a member of the grand jury by whom the indictment was found, &c., should have been allowed. This question, so far as we know, has never been decided by this court, but it has been before the courts of several of the States, and uniformly, we believe, decided to he a good challenge for cause, and that the overruling of such a challenge was an error for which the conviction and judgment should be reversed. In note 4 to section 806, *76Bishop’s Criminal Procedure, it is said•. “Where a juror, on a trial for murder, is objected to for cause, and the objection is overruled,-.to which the prisoner excepts, and afterwards challenges the juror peremptorily, he is entitled to the exception,” and cites Baxter v. The People, 8 Gilman, 368. And this error will not be cured, although the defendant does not exhaust his peremptory challenges, before the jury is completed. — See, also, Barton v. The State, 2 Blackford, 489; Lithgrow v. The Commonwealth, 2 Virginia Cases, 279; O’Driscoll v. The State, 2 Bay, 153; The People v. Bodine, 1 Denio, 281; Dowdy v. The Commonwealth, 9 Grattan, 729, referred to in the brief of defendant’s counsel. In most, if not all, of these cases, the objection was, that the juror challenged had been a member of the grand jury who found the indictment.
4. The evidence offered by the State, that the defendant, on the day the killing took place, proposed to deceased that they should go and rob a negro man who was supposed to have money, should have been rejected on defendant’s objection. It formed no part of the res gestee, and could have had the effect only to create an improper prejudice against the defendant.
5. The question asked by the defendant on the cross-examination of the witness Charles M. Hays, the coroner, who held the inquest over the body of deceased, and had been examined on the part of the State, and had stated that he (witness) had taken a watch and several other articles, the property of the deceased, from the person of the deceased, and that the saddlebags and other articles were delivered to him, as coroner, on the morning after the killing, when he and the jury were holding an inquest on the body of the deceased, and examining into the circumstances of the killing — (the State, before the examination of this witness, having proved, as a part of the confessions of the defendant, that he (defendant) had taken the saddlebags and some other articles, the property of the deceased, from his person at the time of the killing,) was a proper question to be asked. The question so asked of the coroner on cross-examination was, “ of whom he re*77ceived the saddlebags and said other articles, whiek he had stated were delivered to him at the time of holding said inquest?” This should have been permitted to be answered. It was pertinent, both to the confessions proved and to the evidence of said witness on his direct examination. If it was supposed there was an apparent consistency between the confessions of the defendant and the evidence of this witness, then the answer to this question' might have enabled the defendant to show that the supposed or apparent inconsistency, if any, could be reconciled, and the confessions of the defendant and the evidence of this witness both be true. Eor these reasons the said question was proper, and the court mistook the law in sustaining the State’s objection to it.
6. What the defendant proposed to prove, both by the witness Lou Hern, and the witnesses John and Mary Kimbrough, was a clear effort on his part to make evidence for himself, and was properly excluded. What was proposed to be proved by the witness Lou Hern, had no connection with, and-formed no part of the confessions of defendant, proved on the part of the State. It consisted of acts and declarations of the defendant, done and made at altogether a different time, and consequently formed no part of the res gestee. Mr. Greenleaf, in his work on Evidence, speaking on this subject, says: “The principal points of attention are, whether the circumstances and declarations offered in proof were cotemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character. — Vol. 1, § 108, and note 3; Shepherd’s Dig. p. 49, §§ 73-79.
The same authorities show that what was proposed to be proved by John and Mary Kimbrough, was also rightly excluded. The proposed evidence consisted of declarations of the defendant, made to his wife on his coming home after the killing, as to what he desired her to do and say, &c., and therefore could not be proved by him as evidence in his own behalf.
The conviction and judgment of the court below is reversed, and the cause remanded, with instructions, if the *78defendant renews his application for a change of venue, •that the same be granted; and the defendant will remain in custody, until acquitted or otherwise discharged by due course of law.