dissenting. — The defendant was indicted and tried for murder and convicted of murder in the first degree. The question of importance is, whether it was good ground for challenge that the juror Niblett was neither a free-holder nor householder. Section 4331 of the Criminal Code, sub-division 1, provides that, “It is good ground for challenge by either party, — 1. That' the person has not been a resident householder or freeholder of the county for the last preceding year. ” It is conceded in argument that unless this provision is repealed by special act for Montgomery county, the trial court erred in refusing to allow the defendant to challenge the juror for cause.
The act of February 21st, 1893, p. 917 of the Acts of 1892-93, and the act of December 4th, 1888, — Acts of 1888-89, p.139 — and the act of 1886-87, p. 190, are not materially different, so far as they bear upon the question under consideration. Section 3 of the act of 1886-87 enacts, “That said commissioners, at such meeting, shall select from the male residents of the county over twenty-one, and under sixty years of age, the names of all such persons, not exempt from jury duty, as in their opinion are fit and competent to discharge the duties of grand and petit jurors, with honesty, impartiality and intelligence,” &c. ■ The act of 1888-89, supra, was amendatory of the act of 1886-87, but in no way altered 'the foregoing provision. The act of 1892-93, supra, seems to be an independent act, complete of itself. It makes no referance to any other act or law, either general or special, and the first section was evidently copied from section 3 supra of the act of 1886-87. Neither of the two later acts undertakes to legislate upon the right of challenge or prescribe or regulate the ground of challenge. It is not pretended that section 4331, sub-divi-sion 1, of the Code, supra, is expressly repealed, but the contention is, that the provision quoted from section 3 *114of the act of 1886-87, supra, by implication repeals subdivision 1 of section 4381, supra ; that the two are inconsistent with each other, and that to allow sub-division 1 to stand as ground for challenge would defeat the clear legislative intent of the act of 1886-87. We do not assent to this contention. • The established rule of construction of statutes does not favor the repeal of statutes by implication. Unless there is that repugnancy or inconsistency, that in executing one, violence is done to the other, the two must stand, and it can not be said that the statutes bear this relation to each other, when there are different fields of operation for both. It can not be doubted that the legislature is fully empowered to prescribe the qualification of grand and petit jurors; and it is equally within its constitutional authority to prescribe grounds of challenge for cause for both parties, and peremptory challenges. Suppose the act of 1886-87, with proper caption to cover this provision, after providing as it does in section 3, £ ‘that the commissioners ' shall select from the male residents of the county, over twenty-one and under sixty years of age, the names of all such persons, not exempt from jury duty,'as, in their opinion, are fit and competent to discharge the duties of grand and petit jurors,” &c., had expressly declared that all the grounds of challenge for cause enumerated under section 4331 shall apply to trial of cases under the act, would any court hold that the provisions were so repugnant and Inconsistent that both could not stand ? Suppose the statute for Montgomery county had been enacted as a general law and substituted for section 4299 of the Code (4732 of the Code of 1876) could it be contended that such amendment repealed section 4331 of the Code which relates only to challenges for cause? Would it not be clear, that while the legislature enlarged the body o-f persons from whom j urors were to be selected to such persons residents of the county, between twenty-one and sixty years of age, as in the opinion of the commissioners were fit and competent, yet it preserved to'persons on trial the right, at their option, to be tried only by a jury possessed of certain prescribed qualifications ? The juror thus selected might be competent to be put upon a party, and the - cause of challenge might be waived, but if the party saw proper to demand a jury of householders or freeholders the law accorded to him the right. *115It is in the exercise of the same legislative power and upon like principle that the law allows a certain number of peremptory challenges, notwithstanding the juror may possess every statutory qualification. We think it manifest from reading section 10 of the act of 1886-87, that it was the intention of the legislature to preserve and continue in force all the grounds of challenge for cause, contained in the general law. The last clause of that section is in the following words : “In addition to the challenges for cause, allotued bylaw, the defendant shall have the right to peremptorily challenge twelve such jurors, and the State eight of them.” Here we find an express change of the general law as to the number of peremptory challenges, but a positive, unmistakable recognition of the “challenges for cause, allowed by- law.”
Section 4331 isas follows : “Challenge for cause. It is good ground for challenge by either party, 1st. That the person has not been a resident householder or freeholder of the county for the last preceding year.
2d. That he is not a citizen of Alabama.
3d. That he has been indicted within the last twelve months for an offense of the same character as that with which the defendant is charged.
4th. That he is cohnected by consanguinity within the ninth degree or by affinity within the fifth degree (computing according to the rules of civil law) either with the defendant or the prosecutor, or the person alleged to be injured.
5th. That he has been convicted of a felony.
6th. That he has án interest in the conviction or acquittal of the defendant, or has made any promise or given any assurance that he will convict or acquit the defendant.
7th. That he has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.
8th. That he is under twenty-one, or over seventy years of age.
9th. That he is of unsound mind.
10th. That he is a witness for the other party.”
Here are ten enumerated statutory grounds for challenge, and they are none the less statutory because that some were grounds of challenge at common law. What argument can be presented that the first of the grounds for challenge was repealed, and the second and third *116and fifth and tenth, as well as others, were not also repealed? The general qualifications of jurors and the statutory grounds for challenge are entirely independent of each other. In the Code they are under different headings and in different Articles. Can it be said that the commissioners, in selecting “such persons * * as in their opinion are fit and competent to discharge the duties of grand and petit jurors with honesty, impartiality and intelligence,” at the same time are authorized to determine challenges for cause ? or that a person who in their opinion is fit for the duty of grand and petit jurors, is not subject to the statutory challenges for cause? The act provides that the commissioners “shall select from the male residents of the county, over twenty-one and under sixty years of age, ” &c. The statute says “from the male residents.” The cause of challenge is, that if the person is not a “citizen” of the State, it is ground of challenge. Are we to hold that a mere resident, without regard to length of time of residence or citizenship of the State, is not subject to challenge for cause with the positive enactment that he may be challenged for cause? We know of no decision of a State court, and certainly no principle or decision at common law, which supports the proposition. The commissioners may in their opinion deem a person under an indictment for a similar offense “fit” to discharge the duties of grand and petit jurors. It may be an indictment preferred by a grand jury composed in part of such persons under our statutes would be valid, but is the statutory ground of challenge for cause abolished which applies only to petit jurors? It required no legislation, to give a right to challege propier defectum, if the person summoned did not possess the legal qualifications. It was cause for challenge at common law, and is cause for challenge now, independent of statute, but when the legislature enacts certain statutory grounds ás cause for challenge, applicable solely to petit jurors, it requires either a positive repeal of the act or such legislation relating to the right of challenge which may be asserted at the trial, as is inconsistent with the statute, prescribing the grounds of challenge. Can it be said that the statute which authorizes the jury commission to select such male residents, between twenty-one and sixty years of age, as in their opinion are “fit” and *117competent, to discharge the duties of grand and petit jurors, a duty performed months, perhaps, before the trial, without more, repeals the statute which gives the right of challenge of a petit juror to be asserted at the time of the trial? It has been held from time immemorial, that if a person is convicted by a jury composed of one or more persons not possessing the prescribed qualifications of jurors, as non-age, an alien, non-freeholder, that is no ground for setting aside the verdict, or for granting a new trial after conviction. — Rexine v. Sullivan, A. & E. Rep. 831; Rex v. Sutton, 8 Barn. & Cres. 417; Wassum v. Feeney, 321 Mass. 93; 23 Amer. Rep. 258; State v. Jackson, 27 Kansas 581; 41 Amer. Rep. 424; 1 Bishop Criminal Procedure, § 932; Rash v. The State, 61 Ala. 94.
The enumeration of certain grounds of challenge in the statute in no way abolishes the common law right of challenge for cause, or the right to challenge for cause secured by the constitutional provision, “That the right of trial by jury shall remain inviolate.” — Brazleton v. The State, 66 Ala. 97; Smith v. The State, 55 Ala. 1; State v. Marshall, 8 Ala. 302. That a person was a member of the grand jury which preferred the indictment is cause for challenge, though not enumerated as a cause in the statute. — Birdsong v. The State, 47 Ala. 68.
In Bishop’s Criminal Procedure, section 852, it is said : “Not in all respects, it appears, are the disqualifying rules for grand jurors the same or so strict as for petit jurors.” Whether at common law a freehold interest was a necessary qualification for a grand juror is not clear, but we think it is clear, that at common law this was a ground for challenge for cause. Hawkins Pleas of the Crown, vol.' 2, chapter 43, section 12, p. 572, also chapter 25, section 21, and the cases cited, support the proposition, that the want of a freehold interest was ground for challenge for cause at common law. In the case of the State v. Easter, 30 Ohio State 549, the court uses this language: “It is claimed by counsel that the qualifications of a grand and petit juror are the same. The position is not tenable. Both must be good and judicious persons; both must be electors. But there are other requisites for the petit juror, not necessary for the other. The various laws on the subject lay down quite a number of causes for which the petit *118.juror may be challenged.” The court then cites the statute prescribing the grounds of challenge for cause, just as we have done, and concludes: “It is obyious that this must apply to the petit juror who tries the case, and no other.” The further argument of the court in that case is conclusive. The case of Byrd v. The State, 1 How. (Miss.) p. 176, is additional authority. We regard the opinion of the court in both cases as fully sustaining our position.
We can not assent to the argument, that a statute which authorises the commissioners to select from the male residents of the county over twenty-one and under sixty years of age all such persons, as in their opinion, are fit and competent jurors, does or was intended, in the least, to alter the right of challenge secured by the constitution, the statute, or common law. We have numerous adjudications in our own court involving like principles.
Section 4299 of the Code of 1886 is the same as section 4732 of the Code of 1876, and is as follows: “It is the duty of the sheriff of each county to obtain biennially a list of all the householders and freeholders residing in his county, from which list must be selected, as hereinafter provided, the names of such persons, as may be thought competent to discharge the duties of grand and petit jurors for the county.” It will be seen that this statute prescribing the qualification of grand and petit jurors makes no reference to the length of time of residence in the county of the householder and freeholder. One who has resided any length of time in the county, who is a householder and freeholder, possesses the necessary qualifications for a grand or petit juror. The ground of challenge is (section 4331) that “the person has not been a resident householder or freeholder of the county, for the last preceding year.” No one has ever contended before that the section prescribing the qualification of jurors, repealed this right of challenge. Section 4299 makes no allusion to the age of the juror, all that is necessary is that he be a freeholder and householder of the county. The next section, 4300 of the Code of 1886, which was section 4733 of the Code of 1876, provides that “no person must be selected who is under twenty-one or over sixty years of age.” Notwithstanding this provision that no person *119oyer sixty years of age must be selected, it lias been universally held in this State, that, if a person over sixty years of age and under seventy years of age, was drawn, such person was not disqualified and not subject to challenge for cause. This was held in Williams’ Case, 67 Ala. 183; Spigener v. State, 62 Ala. 382. In the Williams case the decision rested upon the section of the Code which provides that seventy years of .age was a ground of challenge, and that being over sixty years was not a disqualification. Another argument is found in the decisions of this court, and the universal practice under the general jury law of the State, as declared by the act of 1886-87, p. 151; Or. Code, p. 131. Section 4732 of the Code of 1876, 4299 of the present Code, was expressly repealed (as was done by the Montgomery act) , and we have in section 3 of that general jury law the following provision: “That said commissioners shall select from the male residents of the county, over twenty-one and under sixty years of age, who are householders or freeholders, the names of all such persons, not exempt from jury duty, as, in their opinion, are fit and competent to discharge the duties of grand and petit jurors, with honesty, impartiality and intelligence;” and in section 9 of the act, it provides that the petit juries shall be organized from the list thus select-, ed. The only qualification for a juror under this act, is that he be a male resident, householder or freeholder, over twenty-one and under sixty years of age. By what process of reasoning can it be said, that section three of the Montgomery act, which provides that the list - shall be made up of residents of the county over twenty-one and under sixty years of age, repeals the statute by implication, which declares that a person who has not been a resident householder or freeholder may be challenged for cause, and that the general law, which we have cited, does not have the same repealing effect? Under the general law the juror is competent, if he be a resident householder or freeholder, without reference to length of time of residence, the ground of challenge being that he must have been a resident householder or freeholder of the county for the last preceding year. There is as much repugnance between the general law, which prescribes as a qualification only that the person be a freeholder or householder, and the statute which *120declares he may be challenged for cause unless he has been a resident householder or freeholder for twelve months, as between the Montgomery county statute which prescribes as a qualification that he shall be a resident of the county and the cause of challenge on the ground that he is not a freeholder or householder. And yet it has never been questioned, that this ground of challenge remained in full force under the general law. Argument upon argument might be made, but more is unnecessary. To hold contrary would overturn a vast array of decisions in this court, as well as that of other courts, and the principles of law universally recognized in text writers, some of which have been cited.
The case of Iverson, 52 Ala. 170, is a direct authority upon the very question at issue. We quote: “Although both statutes relate to some extent to the same subject matter, (the selection and qualification of jurors) , yet each has a separate and distinct field of operation. One provides for a general annual selection of persons to serve as grand and petit j urors; the other prescribes the grounds of challenge for cause of jurors drawn for the trial of criminal cases only. One is general in its provisions ; the other relates to a special class of cases. ” This is the principle upon which the decision rests, and is the true ground. It is a mistake to hold that the decision can be upheld on the ground that the act of 1868, amendatory of section 4063 of the Code, did not vary the qualifications of jurors as provided in another section of the Code. The amendatory act of 1868 has this provision: “ Provided, that all the qualifications and restrictions with regard to competency and qualification in the selection of jurors as is noiu required by law in this section, shall be strictly observed by said officers.’’ The opinion and conclusion in the Iverson Case, rest upon the proper principles, and is sustained by authority and well recognized principles, to be applied to the construction of statutes.
We have considered the question at some length because of the effect of the decision of the court upon the general jury law of the State. The act of the legislature of February 28th, 1889 — Acts 1888-89, p. 77 — amendatory of the general jury law of the State, has a provision precisely similar to section three of the Montgomery act; and. if the same rule of construction is to be ap*121plied to tlie, general law of the State, as given to the Montgomery act, that old landmark of the common law, which allowed as a ground of challenge for cause that the juror was not a freeholder or householder — which has been renewed and invigorated by statutory enactment, and carefully guarded by the decisions of this court from the organization of the State, to the present time — will be utterly obliterated, and that by a rule of construction, which, in our opinion, finds no support in principle or precedent. The law is well stated in 23 Amer. & Eng. Encyc. of Law, p. 482, in the following language: “In the absence' of any repealing clause [and there is none here] it is, however, necessary to the implication of a repeal that the object of the statutes as well as the subject be the same ; if they are not, both statutes will stand, though they refer to the same subject.
In my opinion the majority of the court has failed to observe the distinction between a statute intended to prescribe the qualifications requisite for grand and petit jurors generally, and a statute intended to apply to petit jurors solely, securing rights and privileges, which a person charged with a capital offense, at the time he is put upon his trial, may assert at his option for his benefit and protection in relation to the special juror summoned for the particular trial. The object and purposes of the two statutes are distinct, independent of each other and there can be no conflict in their application. The challenge for cause should have been sustained .
Head, J., concurs in the reasoning and conclusion of this opinion.