— The defendant was arraigned upon an indictment for murder; to which he pleaded not guilty. After-wards, but before- the day fixed for his trial, he filed a plea to the effect that the special venire was drawn from fifteen dif*62ferent boxes, and not “a single box” as required by law. The proper way to reach a venire not drawn in accordance with law, is by a motion to quash the venire. There was no ruling of the court upon this plea, and the record fails to show that the attention of the court was called to it. Pretennitting the fact that there is no ruling to which an exception was taken, or legal question is reserved, upon this point (Ex parte Knight, 61 Ala. 486), we are of opinion the venire was properly drawn. Section 4 of the act of 1886-7, p. 151, which provides that jurors shall be drawn from a box, was amended by the act of 1888-9, p. 430, so far as it applied to Pike county. By the latter act, it is provided that the name of the persons from whom the jurors are to be drawn shall be placed in fifteen boxes — one box for each precinct in the county. The fifteen boxes are here clearly substituted for the one box mentioned in the original act, and it must be so regarded when a jury is to be drawn for the trial of a capital case as provided in section 10 of the act. The record shows the special venire was drawn according to law.
The indictment charges that the defendant unlawfully and with malice aforethought killed Jere Perdue, by stabbing him with a knife, or other weapon, against the peace and dignity of the State of Alabama. Section 4383 of the Code provides, “When the offense may be committed by different means, or with different intents, such means or intents may be charged in the same count in the alternative.” In the case of Horton v. State, 53 Ala. 493, it was declared that the purpose of the statute is to dispense with a multiplicity of counts, permitting one, by alternative averments of different offenses, to serve the purpose of several counts. It follows that each alternative averment must present an indictable offense, or the indictment is insufficient, as at common law, the separate count, not presenting an indictable offense, would be bad. We think this to be a correct exposition of the statute, which permits the averments in the alternative, in one count, of the means by which an offense may be committed. — Burdine v. State, 25 Ala. 60.
The indictment must be examined under the rules of the common law, as if it contained two counts, the first charging that the offense was committed by stabbing with a knife; and the second, by stabbing with a weapon. The first count undoubtedly vrould be sufficient. Is there such a description of the means in the second as to make it a good count ? At common law, it was necessary to set forth in an indictment for murder the means by which the offense was committed, and if by a weapon, it was necessary to say what the weapon *63was, or allege it to be unknown by the grand jury. — 2 Bishop on Criminal Pro., § 514 ; 1 East Pl. Cr. 341. The form given in the Code retains a description of the means used-, as by shooting him with a pistol or gun, or by striking him with an iron weight, &c. Section 4378 provides that, when the means are unknown, it may be so averred in the indictment. We hold that the alternative averment, “or other weapon,” insufficiently describes the means used, and rendered the indictment demurrable.
Instead of demurring to the indictment, the defendant pleaded not guilty, and after conviction moved in arrest of judgment, upon the ground that the indictment was defective. We are of the opinion that the particular defect complained of is not available on motion in arrest of judgment; but to be available, advantage must be taken of the defect before trial and conviction. The authorities are uniform, and on principle must be correct, that averments in the alternative in one count are mere substitutes for so many different counts. The validity of such forms is maintainable, in a great measure, upon this principle. As was held in Burdine v. State, 25 Ala., supra, the defendant is as well informed when he is charged in the alternative, as if he had been charged in different counts; and it is upon this principle that each alternative averment must present an indictable offense. In the case of the State v. Coleman, 5 Por. 284, it was stated, that “it seems now well settled, that when there is a verdict and judgment on an indictment with good and bad counts, the judgmentshall not be arrested or reversed, but the finding of the jury will be upheld by the good counts.. For it will be presumed that the court, and of consequence the jury, were controlled in their actions by a reference to the good counts.” This ruling of the court has been uniformly approved. — 1 Brick. Dig. p. 501, § 761; May v. State, 85 Ala. 16; Glenn v. State, 60 Ala. 104. It would seem to follow from these authorities, that when a count is in the alternative, with some of the averments good, and others charged in the alternative are bad, and no objection is taken to the indictment, a general verdict will be referred to the good averments, and a judgment on conviction will be sustained. Under any other rule, no attorney of any skill would interpose a demurrer or other objection when an indictment was defective, by reason of having bad counts or insufficient averments. He would simply take the chances of acquittal, and, failing in this, would move in arrest of j udgment, and thereby secure the discharge of the defendant, or a new trial. To sustain a judgment of conviction, there must be a good count in the indictment; or, if there is but ‘one count *64containing charges in the alternative, there must be one or more good and sufficient averments. There may be some decisions not altogether consistent with the rule here laid down; but we think this the better practice, and in harmony with the principles of law declared in the cases, cited supra.
There is no rule of law which authorizes the defendant to inquire of a person summoned as a juror, upon his voir dire, whether he was willing to accord to a negro as fair trial as he would to a white person. The statute lays down the rule for ascertaining the qualifications of jurors, and the cause of challenge. As was said in Bales v. State, 63 Ala. 38, “We know of no authority, and we perceive no reason for any such speculative, inquisitorial practice, consuming needlessly the time of the court, and oifensive to the persons subjected to it.” The rule is ancient, that neither party has a right to interrogate a juror before he is challenged. — Hawes v. State, 88 Ala. 66; Lundy v. State, 91 Ala. 100.
The statement of the defendant in regard to the killing, and how it occurred, seems to have been wholly voluntary. The fact that he was under arrest, and that the officer who had him in charge was armed, alone are not sufficient to exclude such statements. There must be some improper influence proceeding from the person to whom the confession was made, or from some other person, or arising from the surrounding circumstances, to exclude the statement of a defendant upon the ground that they were not freely and voluntarily made. The mere fact of arrest, and his being guarded by an officer who is armed, is not sufficient. The statements of the defendant, if true and believed, moreover tended to exculpate, and not to .criminate him. — Redd v. State, 69 Ala. 259; Spiers v. State, Ib. 163; Meinaka v. State, 55 Ala. 47; Dodd v. State, 86 Ala. 63.
There was no error in sustaining an objection to the introduction'of the piece of wood, claimed to be similar in shape to the wagon-spoke as it was said to be when the homicide occurred. The wagon-spoke itself was in evidence, and if its appearance from any cause differed from what it was at the time of the death of deceased, this was a matter of proof. To permit the introduction of another piece of wood, and evidence to show ils similarity, merely presented a collateral controverted issue, calculated to confuse the jury and draw their minds from the main issue. The conversation between the witness and Col. Perdue, in regard to the shape of the spoke, was mere hearsay, and properly excluded.
The definition of murder in the first degree given by the court in its general charge is not, as an abstract proposition of *65law, absolutely correct. As we interpret the charge, it holds that whenever there is a formed design to take life, and life is taken in pursuance thereof, that will constitute the offense of murder in the first degree, without regard to other facts in the case. There may be a formed design to take life, by one acting entirely in self-defense. If a party is without fault in provoking a difficulty, if there is no reasonable way open to him to retreat and escape, and if the assault upon him is of such a character as to- endanger his life, or such as to impress a reasonable man that to save his own life it is necessary to strike, he may strike in self-defense, and with the formed design to take .life, and if death to his assailant ensues, under such circumstances, it will be excusable homicide. No particular duration of time for the existence of formed design is necessary to raise the offense to murder, when the formed design is the product of malice, premeditation, deliberation, and not engendered by passion suddenly aroused, upon sufficient provocation, or the necessities which justify a striking in self-defense.
The law does not require one to retreat from his own castle. In law, his castle is the wall, the limit of retreat. He may take life with a formed design here in resisting assault apparently dangerous to his life or limb, or in the necessary protection of his dwelling; and i't may be excusable homicide, although under like circumstances, at another place, he would be bound to retreat, and failing to do so, he would not be excusable. — Lee v. State, 92 Ala. 19. An officer of the law, having a writ to execute, having reasonable grounds to apprehend resistance, may in some cases arm himself, with the formed design to take life if it becomes necessary in the discharge of the duties imposed upon him by law. In some cases, a person is justified in taking life to prevent the commission of a felony, although done with a formed design.
A person guilty of manslaughter may have instantaneously formed the design to take life, but, to make it manslaughter, there must be an absence of malice, deliberation and premeditation. The design in such case is the result of sudden passion upon sufficient provocation, as distinguished from that formed design which results from malice, deliberation, premeditation. As was said in Harrington v. State, 83 Ala. 15-16, and re-affirmed in Williams v. State, Ib. p. 17, “In order to constitute manslaughter in the first degree, there must be either a positive intention to kill, or an act of violence from which, ordinarily, in the usual course of events, death or great bodily injury may be a consequence.” It is difficult to conceive how there can be a '■‘■positive intention'’ to kill with*66out forming the design to kill, and such “positive intention” necessarily precedes the killing. Whether the “design,” or “positive intention,” is the offspring of the elements which constitute murder in the first degree — that is, “willful, deliberate, malicious, and premeditated” — or the facts which constitute murder in the second degree, or of sudden passion upon sufficient provocation, or in self-defense, is always a question of fact for the jury, under proper instructions of the court. This is the proper meaning and full extent of the law as declared in the leading case of Mitchell v. The State, 60 Ala. 26, when correctly construed.
It is undoubtedly a canon of the law, that “if one man intentionally shoot another with a gun, or other deadly weapon, and death ensues, the law implies or presumes malice;” and we may add, a “formed design” to take life; and it imposes upon the slayer the burden of rebutting this presumption by other proof, unless the evidence which proves the hilling rebuts the presumption. — Hadley v. State, 55 Ala. 37; Mitchell v. State, 60 Ala. 28; Gibson v. State, 87 Ala. 121. Whenever there are any facts testified to on a trial for murder, and which are necessary and are relied upon to sustain the charge of murder, and a jury could legally infer from the facts proving the offense that the defendant acted in self-defense, or the homicide was the result of sudden passion engendered by sufficient provocation, and without malice, it is error to charge the jury as to the presumptions arising from the use of a deadly weapon, without accompanying such charge with the further statement, “unless the evidence which proves the killing rebuts the presumption.” When the facts which prove the killing, do not tend to rebut the presumption which the law raises from the use of a deadly weapon, then it becomes incumbent on the defendant by other evidence to rebut the presumption, and failing to meet this burden the presumptions of law are conclusive against him. — Hadley v. State, supra. Although the jury may have discredited the account given by the defendant as to the means by which the deceased came to his death, and although they may have been satisfied that his statements in this respect were unreasonable, this would not deprive the defendant of the benefit of the evidence in the case, whether introduced by the State for the purpose of criminating him, or by himself as exculpatory evidence. It is upon the whole evidence the jury must make up their verdict. Smith v. State, 68 Ala. 430-1. It would be improper, perhaps, for this court to make special reference to any particular portions of the evidence; but we think, when the evidence sustaining the charge is wholly circumstantial, and the char*67acter of the wound causing death tends to show that it was done by cutting or stabbing, and the relations of the parties to each other existing as shown in this case, the safer rule is to charge on the law of manslaughter, and to let the jury say whether there are facts which would reduce the crime to a lower degree than murder. — Hall v. State, 40 Ala. 706.
There was no error in giving the second and third charges requested by the solicitor.— Coleman v. State, 59 Ala. 52.
The first and seventh charges requested by the defendant exact too high a degree of conviction in the minds of the jury of the guilt of the defendant. The law does not require that the jury be satisfied beyond all doubt.
The definition of manslaughter in the first degree, contained in the second charge requested by the defendant, is erroneous, and was properly refused. It omits the important qualifying clauses, “unlawful,” and “without malice.” The statute does not attempt to define manslaughter, and we must look to the common law for its definition. — Smith v. State, 68 Ala. 430; 3 Brick. Dig. 218, § 560.
Premeditation is not necessarily a constituent of murder in the second degree. As was said in Ex parte Brown, 65 Ala. 447-8, “if there be a killing without previous malice, provoked by abusive language, or other offense less than an immediate preceding assault, and the insulted party, maddened by the insult, immediately and without reflection, without time to reflect, and with no purpose formed or thought of, take life with a deadly weapon, this reduces the crime to murder in the second degree; but it reduces it no lower.” The statute itself (Code, § 8727) declares that killing in a sudden rencounter, by the use of a deadly weapon concealed, his adversary having none, under certain circumstances is murder in the second degree. There was no error in refusing this charge.
Charge five, requested by the defendant, is misleading, and asserts an incorrect proposition of law. It is always permissible for the State to prove facts which tend to show a motive for the commission of the offense. Such evidence assists in fixing the crime upon the proper person, and in some cases is strongly instrumental in determining the degree of the offense; but, if the offense be clearly made out by other evidence, it is not incumbent on the State to go further, and also prove a motive. A person who deliberately shoots and kills another with a deadly weapon, without excuse, whom he never heard of or saw before, may be guilty of murder, although there may be an entire absence of proof of motive. Under such á rule as asserted in the charge requested, the very atrocity of the offense would be made to furnish a presumption of innocence.
*68The fourth and sixth charges are misleading and argumentative in their character. Courts and text-writers often precede their' conclusions by just reason and sound argument, to sustain them; but when copied into a charge to a jury, would confuse and mislead. This court never reverses for refusing to give a charge of this character. — Tanner v. State, 92 Ala. 8.
For the error pointed out in the first charge given at the request of the solicitor, the case is reversed, and the cause remanded.
Reversed and remanded.