1. The objections to' the formation of *7the grand jury are not well táken. It was organized, impanelled” and sworn, in conformity to the statute. — Code of 1876, § 4754. Fifteen only of the original venire having appeared, and two of them being excused from service, the contingency existed in which the court had power,' and it became a duty, to complete the jury, by ordering the summons of a sufficient number of qualified citizens to supply the deficiency. In the exercise of this power, the court could order a summons of only such number as would increase the jury to fifteen, or of such number as would increase it to eighteen, or to an intervening number, as in its discretion was deemed best for the administration of justice. Either number would, under the statute, complete the grand jury when impanelled and sworn, and the selection of either is not an excess of the power conferred upon the court..— Yancey v. The State, 63 Ala. 141.
2. There was no error .in admitting the dying declarations of the deceased. The matter of these declarations was, the circumstances under which the in juries of which the deceased was languishing had been inflicted, and the person by whom they were inflicted. They were made when he was in extremis, and when he was conscious that from the injuries he must die. From the day he suffered them, to the day of his death, uniformly he expressed the belief and expectation that from them he must die, and all the efforts of his medical attendant to encourage of inspire a hope of recovery were unavailing. This species of testimony should always be received with the greatest caution, and most rigorously should the courts scrutinize the primary facts upon which its admissibility is authorized. But, when the two facts upon which the law authorizes its introduction are. satisfactorily and clearly shown — the fact that at the time of making the declarations the deceased was in extremity, and under a sense of impending death, that he was without hope of life — they must be received, leaving to the jury, who must pronounce upon their weight, all infirmative considerations affecting their credibility. — Moore v. State, 12 Ala. 764; McLean v. State, 16 Ala. 672; Oliver v. State, 17 Ala. 587; McHugh v. State, 31 Ala. 317; Mose v. State, 35 Ala. 421; Faire v. State, 58 Ala. 74.
3. In all criminal prosecutions, whether for felony, or for misdemeanor, the previous good character of the accused, having reference and’analogy to the subject of the prosecution, is competent and relevant as original testimony; it is a fact which must be submitted to the jury, and ought to be considered by them in determining whether he is guilty ox the offense with which he is charged. But, if, when the good character is shown, and it is considered in connection with the evidence criminating the accused, the jury are persuaded beyond a reasonable doubt *8of liis guilt, a verdict of conviction ought to follow; and it is this proposition which is embodied in the charge given by the City Court, to which the second exception of the appellant refers.
4. A homicide, committed in the attempt to perpetrate either of the felonies, arson, rape, robbery or burglary, is by the statute pronounced murder in the first degree. — Code of 1876, § 4295. The criminal intent, which is involved in the attempt to commit either of these felonies, gives complexion to, and determines the character of the killing which may be consequent. It supplies the place of “malice aforethought” of the common law, the essential and distinguishing characteristic of murder, and of the specific intent to take life, or the “ willful, deliberate, malicious and premeditated killing,” which is the element of one class of homicides the statute denounces and punishes as murder in the first degree. — Fields v. State, 52 Ala. 348; Mitchell v. State, 60 Ala. 26; People v. Sanchez, 24 Cal. 17. The charge given by the City Court on this point was free from error, and that requested by the appellant was properly refused.
5. A deliberate consideration of the evidence introduced by the prosecution, criminating or tending to criminate the appellant, can but lead a candid mind'to the conclusion, that he ought to give, if he would resist its force, an account of his whereabouts at the time the injuries were inflicted upon the deceased, or of some other fact which would lessen the force of the circumstances, and of the facts pressing against him. If he . attempt explanation, or contradiction, or an account of himself at the time when the crime was committed, and the explanation or contradiction is not successful or satisfactory, or the account given of himself can not be accepted as true, the jury will weigh these facts against him; not as absolute or conclusive of guilt, but as influential, and as tending to corroborate the criminating evidence. The general proposition is true, that upon the prosecution rests the burden of proving the guilt of the defendant, and of proving it beyond a reasonable doubt; and that he is not under a duty of establishing his innocence; yet, if-he assumes to give explanations of his conduct, or to account for his absence from the scene of crime, or to prove any fact resting in his own knowledge, and of which, if it exists, he must have the peculiar means of proof, and' fails, the fact of failure must be -weighed or considered 'in determining his guilt. Its value, and the importance -which should be attached to it, depend upon the character of the criminating evidence, and is for the determination of the jury.
In Porter v. State, 55 Ala. 107, the court said: “ An attempt . to prove any material fact, followed by a failure, is a circum*9stance to be weighed against the party making it.” There are authorities pronouncing that “an unsuccessful attempt to establish an alibi is always a circumstance of great weight against a prisoner, because the resort to that kind of evidence implies an admission of the truth and relevancy of the facts alleged, and the correctness of the inferences drawn from them, .if they remain uncontradicted.'” — Wills Cir. Ev. 83; Burrill’s Cir. Ev. 519.. This doctrine was- expressly repudiated in Porter v. State, supra, and the failure to make the proof was declared no more than a circumstance to be weighed against'the prisoner, as would be the fact that he left unexplained or uncontradicted any other criminating circumstance he had, or is presumed to have, the means of explaining or contradicting. — Gordon v. People, 33 N. Y. 501. We find no error in-the charge of the City Court, touching the failure of the defendant to prove an alibi
6. There was no error in the refusal to instruct the jury, that by the verdict they must specify upon which of the two counts of the indictment they found the defendant guilty. Each count is in form sufficient, and the only difference is in the description of the means by which the unlawful and malicious killing was perpetrated. When the several counts of an indictment are in proper legal form, and relate to a single .offense, and a conviction upon either requires the same judgment and the same sentence as a conviction upon all would, a general verdict is all that the law requires. — State v. Wright, 53 Me. 328; Commonwealth v. Desmarteau, 16 Gray, 1; Jackson v. State, at present term.
We find no error in the record, and the judgment must be affirmed.