The opinion of the court in the main ease was as follows:
PETERS, J.The appellant, Zach Stephens, was indicted at the February term, in 1871, of the city court of Montgomery, for murder. He was tried at the July term following of said city court, and found guilty of murder in the second degree, and sentenced to confinement in the penitentiary for fifty years. And he now brings the case here by appeal, and insists that the record shows numerous errors in the proceedings in the court below, which would justify a reversal of the judgment of conviction, and a new trial in the court below.
In such an appeal, this court must render such judgment on the record as the law demands. No assignment of errors is needed. — Rev. Code, § 4314. The charge here is a capital offense. — Rev. Code, §§ 3653, 3654. On this the *706accused was arrested and committed to jail, and lie was in actual confinement at the time of the trial. This entitled him to have a copy of the indictment and a list of the jurors summoned for his trial, including the regular jiny, “delivered to him at least one entire day before the day appointed for his trial.” — Rev. Code, § 4171. This is a constitutional right, which the record should show has not been denied him. — Const. Ala. Art. I, § 8; Driskill v. The State, 45 Ala. 21; Lacy v. The State, 45 Ala. 80; Flanagan v. The State, 46 Ala. 703. The recital in the record on this point is in these words: “ It is ordered by the court, that the trial of this cause be set for Thursday, the 9th day of March, 1871; and that the sheriff summon fifty special jurors, in addition to the regular panel, to appear on said day, to serve as jurors in said cause; and ordered, that a copy of the indictment, together with a list of the special jurors, and also of the regular panel, be served upon him one entire day before the day set for trial.” The judgment entry also recites that “ a copy of the indictment and a list of all the jurors, both regular panel and special jurors, having been served upon defendant one entire day before the day set for trial,” &c. It is insisted that there is such a radical difference between the word delivered and the word served, that they can not be used indifferently for each other. The constitution declares that “the accused has a right” “to demand the nature and cause of the accusation,” and “to have a copy thereof.” — Const. Art. I, § 8, supra. In criminal prosecutions, certainty to every intent is required. Where the life or liberty of the citizen is in peril, nothing is to be taken by intendment. The words, then, which declare the performance of an act to which the accused is entitled as a right, should be those used in the law that gives the right, or of equivalent import. The words “to have,” and “to deliver,” are not equivocal. They are certain to every intent. They need no argument to make their meaning clear. Can this be said of the word “serve”? I think not. A service may be made without an actual delivery. The usual mode of summoning witnesses is by serving the *707subpoena by notice of its contents. Tbis would not do, if an actual delivery of a copy were required. Tben, tbe language of tbe record is insufficient to show tbat a copy of tbe indictment and a list of tbe jury were delivered to tbe defendant, as required by law. And without tbis, tbe proceeding is erroneous. — 45 Ala. 21, 80, supra. It is much tbe best to follow tbe language of tbe statute in such a case. Tben there can be no doubt. Tbe same may be said of tbe declarations of the record upon tbe organization of tbe juries. Tbe safest rule is to follow tbe language of tbe statute as minutely as possible. If departures from tbis language are permitted, tbe field of controversy will be enlarged, and tbe rights of tbe accused will be imperiled. In criminal proceedings this is forbidden. Parmer v. The State, 41 Ala. 416.
On tbis point I differ with my brethren. They bold tbat tbe recitals in tbe record show a delivery to tbe defendant of a copy of tbe indictment and bst of jurors, &c., as required by law.
It is further objected in behalf of tbe appellant, tbat tbe oath administered to tbe jury, on tbe trial below, was not sufficient. Tbe record shows tbat tbe jury were sworn to “try tbe issue joined between the State of Alabama and tbe defendant, Zacb Stephens.” Tbis is not tbe oath requtied by tbe statute. Tbis latter oath is not only to “try tbe issue joined between tbe State of Alabama and tbe defendant,” but also, “ true verdict render according to the evidence.” — Rev. Code, § 4092. Tbe difference between these two forms is too palpable to need comment. Tbe statutory form is tbe only one tbat can be permitted to be used. If any other is used, the court does not proceed by “due process of law.” — Const. Ala. Art. I, § 8; Rev. Code, § 4092; Perry v. The State, 43 Ala. 24; Joe Johnson v. The State, 47 Ala. 9.
Tbe charge of tbe court, as shown in tbe bill of exceptions, is also objected to. It is not free from error. Tbe statute divides felonious homicides into two classes; tbat is, 1st, murder in tbe first degree; and 2d, murder in tbe second degree. Tbis last is any “homicide committed *708under such, circumstances as would have constituted murder at common law.” — Rev. Code, § 3653. There could be no murder at common law without premeditated malice; that is, “malice aforethought.” — 4 Bla. Com. 195; 1 Hawk. P. C. p. 184, 7th Lond. ed. 1795; 1 Russ. on Crimes, p.482, et seq. The charge here instructs the jury that “malice” alone, coupled with a willful act which produced the death, was sufficient to constitute murder at common law, or,, which is the same thing, murder in the second degree under our statute. Malice means evil-mindedness and a disregard of law. All homicides, except in self-defense, or by accident or ignorance, are done with an evil mind and a disregard of law; yet there is a considerable class of homicides, so committed, which are not murders at common law, or under the statute. — Rev. Code, § 3659; 1 Bish. Cr. Law, p. 230, bottom; § 263, and cases in notes. Then, there must not only be malice, but “malice aforethought,” to constitute murder in the first or the second degree under our statute. The charge of the court found in the record departs from this definition of murder in the second degree. It is erroneous.
The remarks of the court, when asked by the defendant’s counsel in the court below to instruct the jury as to the form of them verdict in case they found the defendant guilty, of manslaughter in the second degree, or involuntary manslaughter, were unfortunate. The remarks were, “I can’t conceive how the jury could find such a verdict upon such' a state of facts; but, if you request it, I’ll instruct them.” Although this was obviously not intended' as a charge to the jury, yet it is hardly consonant with that perfect fairness and impartiality that should be most scrupulously maintained by the presiding judge where the life and liberty of the citizen are imperiled. Often “trifles light as ah, are confirmations strong as holy writ” to bias minds, and juries are not always free from such. But I have no doubt that those remarks were an unguarded and hasty expression of opinion, which will not be repeated by the learned and amiable and upright judge who presided *709on the trial of this cause in the court below. — Sims v. The State, 43 Ala.
The judgment and sentence of the court below are reversed, and the cause is remanded for a htew trial. The appellant, said Zach Stephens, will be kept in custody until discharged by due course of law.