The decision rendered in this case, at the January term, 1872, on the application of the prisoner for a writ of mandamus to the judge of the circuit court of Etowah, commanding him to strike the cause from the docket of that court, we are compelled to regard as conclusively adjudicating that the cause is properly and legally pending in that court; that the court has, and must entertain, jurisdiction of it. We are unwilling to review or disturb that decision. Ex parte Hall, 47 Ala. 679.
2. The court properly overruled the motion of the defendant to quash the venire because of mistakes in the names of persons summoned as jurors, either in the venire or in the lists delivered to him. The statute expressly declares that such mistakes shall not be deemed sufficient cause to quash the venire. R. C. § 4175. The purpose of the statute was, to avoid all such objections, which, if they ever had any force, were more often resorted to for the purpose of delay than to advance the administration of justice.
3. The statute disqualifies a juror, summoned for the trial of a criminal cause, if he has a fixed opinion as to the guilt or innocence of the defendant, which would bias his verdict. Whether he has such an opinion, is to be ascertained by his examination only. R. C. §§ 4180-1. The examination of the juror Little did not disclose that he had any fixed opinion as to the guilt or innocence of the defendant. He merely doubted whether he could divest himself of opinions formed from what he had heard, but believed he could. The opinion of the juror seems to have been formed on mere rumor, not from information derived from persons having knowledge of the facts attending the homicide with which the defendant is charged. It was not, in any sense, a fixed opinion, but an impression, capable of removal, if the facts were variant from the report which had reached the juror, or the law, as given in charge by the court, should compel him to view them in a different light.
4. It was a matter of discretion with the court whether the names of the jurors, as drawn, should be called only from the clerk’s desk, or from the outer door of the court-house. It was the duty of all summoned as jurors to be in the presence of the court, and not to depart it without leave. The progress of a trial would be greatly embarrassed, if the court was compelled to pause, as the name of each juror in a capital case was drawn, until by a call from the sheriff at the outer door it was ascertained whether he would respond or not.
5. In Bishop v. State (30 Ala. 34), it was decided that, on a change of venue, in a criminal case, it is not necessary that the *14clerk’s certificate, appended to the transcript, should be under his seal, private or official. The certificate of the clerk that the transcript contains a true and correct transcript of the organization of the grand jury, the indictment, and the orders of the court, was a substantial compliance with the statute ; and the evidence of the clerk was unnecessary. Scott v. State, 37 Ala. 117. We do not doubt, that if the certificate had been deficient, its deficiencies could have been supplied, and were' supplied by the evidence of the clerk.
6. The court erred in refusing to permit the defendant to recall the witness, Mary Campbell, and to reexamine her with a view to her contradiction. Questions of this character are, ordinarily, within the sound discretion of the court, and its action thereon is not revisable. But in this case the defendant suspended his cross-examination, to prepare questions laying a proper predicate for her contradiction. This was announced to the court, and not being objected to by the court or the State, the defendant directed the witness to stand aside “ for the present.” If to this course an objection had been made, the defendant could have continued his cross-examination, and laid a proper predicate for the impeachment of the witness. The assent of the court, and of the State, to the suspension of the cross-examination, cannot be allowed to deprive him of the right of impeachment. He had the right to recall the witness, and continue his cross-examination, with the view of her impeachment. If the cross-examination had been concluded, it would have been discretionary with the court, whether the witness should have been recalled, and the cross-examination renewed. But it had not been concluded. It was temporarily suspended, without objection from, and, in consequence, with the implied assent of, the court and the solicitor. It would be a wrong, which might produce grave injury to the defendant, to withhold from him the right of continuing subsequently the cross-examination.
7. The evidence of Miss McLarnier, as to the acts of the defendant’s mother, in his absence, was wholly irrelevant. We cannot discover, from the bill of exceptions, that it was calculated to have the least influence on the minds of the jury. It was entitled to none legally. It possibly may have been made the basis on which to found an unfair argument against the defendant, and to mislead the jury. What it was the mother of defendant had under her arm, and what was the subject of the whispering between her and her daughter, was all mere matter of suspicion and remote conjecture, which a jury should not be encouraged to indulge in a criminal case of this gravity.
8. The conversation had by the witness Harry Davis, with the witness Mary Taylor, should not have been received in evi*15dence. It was not admissible to support the credibility of Mrs. Taylor, and we can see no other purpose for its introduction.
9. The State, for the purpose of showing improper intimacy between the defendant and Mary Campbell, now Mary Taylor, was permitted to prove that they were seen at church sitting at the back part of the congregation, whispering. To repel any unfavorable inference arising from this evidence, the defendant offered to prove that other men and women in the crowd were whispering together. This evidence should have been received. It had a tendency to repel the inference which might be drawn from the evidence of the State.
In the remaining rulings of the court, either in the admission or rejection of evidence, or in the charge given,the jury, we are not able to discover any error.
For the errors we have pointed out, the judgment is reversed, and the cause remanded. The defendant must remain in custody until discharged by due course of law.