RESPONSE TO APPLICATION EOR REHEARING.
HARALSON, J.We are satisfied with the opinion delivered heretofore in this case, by the late Chief Justice, Stone, except in the particulars we now proceed to notice. The facts on the questions we refer to need not be restated, further than to explain more fully the views we now take, different from those announced in the former opinion.
First. In our former opinion, we held that the court committed no error in rilling that the witness, McCoy, could not be allowed, on rebutting examination by defendant, whose witness he was, to explain his motive in telling the State’s witness, Hamilton, that he knew nothing about the matter. According to our repeated rulings, it is certainly well settled, that witnesses are not permitted to testify to their motives, belief, or in- ' tentions, when secret and uncommunicated, such motives and intentions when relevant, being for the determination of the jury ; and it is not our purpose to question this rule, now too well settled to be disturbed. To have admitted this evidence would not, however, have infringed the 'rule.
’• The witness on his cross-examination by the State, conducted with the view of impeaching him, hacl, as we have seen, made an answer to the question, which, unexplained, tended to throw discredit on his evidence. To refuse to allow him, under such circumstances, to ex•plain his motive in making the statement, would violate well established rules. Mr. Greenleaf says: “Common *21justice requires that, first calling his attention to the subject, he should have an opportunity to recollect the facts, and, if necessary, to correct the statements already given, as well as by a re-examination to explain the nature, circumstances, meaning and design of what he is proved elsewhere to have said,” and, as the author says, he may be asked the motive by which he was induced to use such expressions. — 1 Greenl. Ev., §§ 462, 467. And, touching the same principle, this court has heretofore held, that he may be asked what induced him to give to the person to whom he made the communication,- the account of it which on cross-examination he admitted he gave. — Campbell v. State, 23 Ala. 76; Lewis v. Post, 1 Ala. 69; 2 Russ, on Crimes, 937. We must hold, therefore, that the court below erred in' excluding this evidence.
Second. On are-argument of the cause, and a re-examination of the question, we are led to the conclusion, that the jury which tried this defendant was illegally organized. Section 3 of the act of 28th February, 1887, (Cr. Code, p. 132), requires the jury commissioners to -prepare a list of all persons between 21 and 60 years of age, who are qualified by the terms of said act to serve as jurors ; and section 4, — copied in the main opinion,— gives specific directions how grand and petit jurors are to be drawn from the jury-box. We may fairly assume, from common knowledge, and from the internal evidence furnished by the terms of the act itself, and the statutes it replaced, that one of the main purposes of the legislature in this enactment was to remove, as far as practicable, all opportunity for any officer, or set of officers, to select out of his or their own heads'a jury to try a party indicted for crime, or to pack one in his favor. The temptations to organize a jury for the occasion to acquit or convict, as the person or persons selecting them might desire, were too great, and the consequences to the welfare of the cummunity and State too serious, not to provide as ample safe-guards as practicable against such a practice, and secure a fair and honest administration of the criminal- law of the land.
To this end, the statute requires the commissioners to take an oath to faithfully discharge the duties required of them by the act, to keep secret the counsel of themselves and their associates, and not to declare the name *22of any juror drawn until the ■venire shall have been issued for the juror, and in the beginning to fill the box, in the manner required by section 4, with the names of the persons composing the list required to be made by section 3 ; and, until this was done, it is fair to assume, that no jury could have been legally organized by drawings from said box. After the box has thus been filled, and the commissioners have proceeded to draw from it the grand and petit juries for the succeeding terms of the court, they are required by section 5 to prepare a list of the • names of the persons drawn as grand and petit jurors, for each week of the term, separately, and envelop and seal the same, and endorse them to the clerk of the court, in which they are to serve, whose duty it is made to issue summons for them as required by said section. The commissioners are also required by section 6 to deposit in the box from which the names are drawn copies of all lists furnished the clerk of any court, and deposit the box securely locked and sealed in the office of the judge of probate. The president of the commission is required to keep the key to said box, and no one, besides himself and tire jury commission, have access to it, except the judges of the courts, for the purpose of comparing the venire issued by the clerk with the copy of the list furnished to him and for the purpose of drawing special jurors in capital cases, as provided by section 10 of the act. The sheriff is not allowed to select a juryman under said act, except in two instances. If, at the time appointed for the trial of a capital case, the jury should not be made of those summoned and who appear, or if the said venire should be exhausted by' reason of challenges, or otherwise, then the court, as provided in section 10, shall order the sheriff to summons from the qualified citizens of the county, twice the number necessary to complete the jury, which process may be repeated until the jury is completed; or, if in drawing a special j ury for the trial of a capital case, as provided in said section 10 of the act, the jury-box should become exhausted, it is provided in section 12, that the trial shall not, on that account, be delayed, but the court shall direct the sheriff to summon the specified number of qualified jurors necessary to complete said venire and proceed with the trial.
We have referred thus particularly to the precaution*23ary measures provided by the legislature for the due execution of this criminal statute, removing, as far as may be consistent with the public interest, all opportunities to pack a jury for or against a defendant. We are not permitted to hold that these provisions are merely directory. In Well’s Case, 94 Ala. 1, we held, that under the provisions of this statute, requiring the commissioners to first draw the regular number of names for grand jurors, and then the requisite number of petit jurors, they could not draw the entire number for both grand and petit jurors and then select from the whole the requisite number for grand jurors, leaving the others for the petit juries ; and that a defendant in a capital case, might, on his motion, quash a venire composed partly of such petit jurors. The court, by its Chief Justice, Stone, said : “We have no authority forgoing beyond the provisions of the statute, even though in doing so, we may appear to have done the defendant no actual injury. We must observe and enforce the law as it is written.” — Goodwin v. The State, 15 So. Rep. 571, infra.
Section 12 of said act provides, that if, at any time, when said jury commission meets to draw the juries, as provided in sections 4 and 6 of the act, there should be an insufficient number of jurors’ names in the jury-box from which to draw the necessary juries therein required, then, it is made their duty to proceed, as required by said sections 3 and 4 of said act, to provide the necessary list of jurors and place the same in the said jury-box, and proceed to complete the drawings of said j uries.
At the time the defendant’s trial came on, the box having before .that been exhausted, the commissioners had only partially completed the list and box, preparatory for use in future trials. G. L. Thomas, president of the jury commission, testified, that “the jury commission found it necessary to draw the venire in this case from the box containing all the „ names of qualified jurors of the county which had been selected and put upon the list at the time of the drawing of said venire, and that the selection and list were only partially made and had not been completed at the time of the drawing of said venire, and at the time it was received by the clerk, and said selection and lists were not completed until the 29th day of March” (1893).
*24The record shows that the judge of the court drew the names of the special jurors from said box, on the 3d day of April, 1893. How far the commissioners had proceeded in the completion of the box, and how many names there were in it, at the time the judge drew the special jurors, is not shown. From aught appearing, it' may not have contained more than was sufficient to draw a jury in this case.
To proceed to draw from the box a jury to try the defendant, under such circumstances, was a violation of law, and against its whole spirit and policy. We would not intimate any unfairness on the part of the commisioners in arranging this box with reference to this or any other criminal case in that court, or that they were not proceeding fairly to discharge their duties. We have no evidence to lead us to suspect such a thing ; but, if such a practice as we review were held to be lawful, it removes one of the safeguards provided by the legislature against the possibility of having an unfair selection of jurors put upon a defendant.
It is no answer to our conclusion, that criminals tried under this law, after the first and successive drawings from said box, have fewer persons than the whole number first in the box, from which to have juries made up. This is the chance the law, and not the commissioners, puts upon them. The one results by operation of law from the drawing of previous juries, and the other may arise from the evil purpose of the parties making up the jury-box. To have completed the lists and filled the box as required by sections 3 and 4 of said act, after it had been exhausted, was mandatory and not directory to the commissioners, before any drawing therefrom by themselves or the court could proceed.
We see no reason why these commissioners may not, if they are diligent, always have these lists made and the box filled in time to prevent delay and expense to the county in the drawing and empanelling of jurors. But, if for any reason, ‘ they have failed to have the box in readiness for the trial in the manner required by the statute, and delay in trials occurs in consequence, better that, than proceed in violation of the letter and spirit of the statute.
When for any cause, the court may not be able, in the trial of a capital case, to proceed under this statute to *25organize a jury, whether it might not proceed under other statutes of the Code to dp so, quered That question ig not before us, and we do not decide it..
The foregoing are the only two grounds to which our attention has been called, which lead ns to correct our former rulings in this case. In other respects we find no error in the record, and the original opinion stands affirmed.
Reversed and remanded.