— The testimony of S. C. Zaner, Jr., as to there being a crowd at the depot after the difficulty and before the defendant and those with him had been apprehended, and to the effect that some one in the crowd said that “those boys ought to be caught and killed,” and that he, witness did not hear any one in the crowd “discourage that idea,’’ considered as addressed to the presiding judge on the preliminary inquiry as to whether certain statements of the defendant, supposed to be in the nature of confessions, made afterwards, were freely and voluntarily made, was wholly irrelevant, and had it been received could not legitimately have influenced the conclusion of the judge thereon. If, therefore, he erred in excluding it because it had been given in response to an illegal question to Avhich no objection was interposed, the error Avas innocuous and furnishes no ground for reversal. — Burton v. State, 107 Ala. 68, 72-3.
But we do not think error was committed by the court *6in this connection, whether this testimony be considered as addressed to the judge or jury, or both. Illegal evi-. dence may be excluded at any stage of the trial to submission of the cause to the jury. If an illegal question is propounded, and there is no objection to it, and the answer is responsive, the party against whom it is offered is not entitled to have the answer excluded: the court may always properly refuse to exclude the answer on his motion. But on the other hand, the court commits no error in allowing his motion to exclude or in excluding such illegal evidence of its own motion at any time before the jury retires, having of course a care that the other party is not put at undue disadvantage by such ruling. — Pearsall v. McCartney, 28 Ala. 110; 125-6; Pool v. Devers, 30 Ala. 672; Avery v. Searcy, 50 Ala. 54; Edisto Phosphate Co. v. Standford et al., 112 Ala. 493.
Nor was the excluded testimony within the legitimate range of cross-examination. It was in itself extraneous and impertinent to any issue in the case, and it does not fall within that class of testimony which, though not pertinent to the issues of the case, may be gone into on cross-examination to test the witness’ means of knowledge, memory, accuracy or credibility; and it was obviously not sought to be adduced for any of these purposes.
On the. case made by the evidence below; it was open to the jury to find the defendant guilty upon either one of three theories, viz.: first, that he personally delivered the fatal blow; second, that there was a conspiracy between and on the part of the defendant and the other three of his party to bring on and prosecute the affray in which the deceased was stricken, and that in pursuance of this conspiracy one of defendant’s associates dealt the mortal wound; or, third, that though there was no such conspiracy, and though the deceased was not stabbed to death by the hand of the defendant he was present aiding and abetting that one of his party who did inflict the wound, and hence was an accessory before the fact at common law, and a principal in the crime under our statute. Charges 6, 7, and 9 requested by defendant were severally bad in that they each predicate an acquittal on the failure of the jury to believe *7beyond a reasonable doubt that there was a conspiracy in furtherance of which Hunnicutt was killed, or that this defendant personally inflicted the fatal wound, and withdraw from the jury the inquiry whether the defendant, though not a conspirator and not the direct physical agent of the blow, was present aiding and abetting the person who delivered the Avound.
Charge 17 refused to the defendant is substantially the same as charge 5 which was given at his instance, and the court therefore committed no error in refusing to give it.
Charge 18 Avas properly refused. To defendant’s guilt as a conspirator it Avas not essential that the object of the conspiracy should have been the death or injury of ' Hunnicutt or some other person, but only the doing of an unlawful act or a lawful act in an unlawful manner, and the killing of Hunnicutt in pursuance of such design.
Charges 15 and 16 refused to the defendant would have required an acquittal upon a reasonable doubt resting solely upon a part of the evidence considered separately from the whole evidence, when such doubt may haATi been dissipated by a consideration of the entire case in evidence. — Nicholson v. State, 117 Ala. 32; Hale v. State, 26 So. Rep. 236; Lodge v. State, 26 So. Rep. 200.
Charge 22 refused to the defendant should have been given. The substance of it does not appear to be embraced in any charge Avhich Avas given to the jury. It postulates each of the three theories upon which conviction could possibly be rested, and it in effect properly directs an acquittal if the jury should have a reasonable doubt of the facts essential to support each of them.
Charge 28 Avas properly refused because in so far as it is applicable to the case it is a repetition of charge 5 given for defendant, and for the further reason that it assumes without warrant the existence of evidence in the case tending to show that neither the defendant nor any one of his associates stabbed Hunnicutt.
We have discussed all the exceptions treated of in the brief of defendant’s counsel. There are others of which counsel do not treat. These Ave have .considered and found to be without merit, but deem it unnecessary to discuss them, , . , ¡.
*8Por the error committed by the court in refusing charge 22 the judgment of the county court must be reversed. The cause is remanded.
Reversed and remanded.