1. Chapter 166 of the Criminal Code, in which sections 4997, 4998, 5004 and 5005 are found, apply to the trial of criminal cases in the City Court of Talladega. — Acts, 1898-99, p. 738.
On the 5th day of October, 1899, the defendant was *24brought before the court, — having, on the 11th of September previously, pleaded, not guilty to the indictment, —and the trial of his cause was set for the 31st of October, 1899, in a week for which no petit jurors had been drawn by the jury commissioners.
The court, proceeding under section 4998 of the Code, ordered 30 qualified persons to be summoned to serve as jurors for the week in which the case was set for trial, and drew from the jury box under section 5004, the name of 40 others; making 70 jurors allowed for the trial. The 30 regular jurors were summoned, and Avere in attendance on the day of trial. A list of these, and the 40 special jurors, together with a copy of the indictment, were, according to the previous order of the court entered of record, served on the defendant, at a time more than one entire day set for the trial. We -have examined the transcript in the cause, and are of the opinion, that the court proceeded regularly and legally to set doAvn the day and in procuring a lawful jury for the trial. The fact that the defendant had been carried from the court house to the jail, at the time the special venire for his trial was drawn, and he Avas not actually present at the drawing by the court, was of no avail to quash the venire, as we have more than once decided.— Stoball v. The State, 116 Ala. 454; Frazier v. The State, Ib. 442; Hurd v. The State, Ib. 440. The motions to quash Avere properly overruled.
On the day of the trial, the defendant pleaded again, not guilty, and another plea, not guilty by reason of insanity.
2. Sam Long, examined by the State, testified, that defendant’s general character Avas bad. Defendant’s counsel asked the witness on the cross: “Are you friendly or unfriendly to the defendant?” to which he answered, “I don’t know; I have never been very .friendly with him.” Counsel then asked the witness if he did not at a certain time and place say to him: “Mr. Browne, I bought that place from Mr. Joe Savery, that Browne & Dryer got from Nath Bagland and his Avife on their fee in this case, and which they sold to- Joe Savery, and they tell me if Nath ever gets out of jail, he can get the place *25back, and I want to know if that is so ?” This was laying a predicate evidently, to impeach the witness, if he denied the conversation. It was objected to, because it Avas about'a matter entirely immaterial, and Avas incompetent. It needs no comment to sIioav that the objection Avas properly sustained. Counsel then, as he declared, desired to shoAv the unfriendliness of the Avitness toAvards defendant, and proposed to. ask him: “Did you not at such time and place say to me (Cecil Browne) in substance, that you had bought or Avere on a trade for a house and lot that Nath Itagland and his Avife had sold to BroAvne & Dryer, and that you had been told, that if he got out of jail, he Avould get it back, .and that you and he Avere unfriendly, and you Avere afraid if he got out he Avould get it back?” The solicitor objected on the same grounds as before. The part of this question, except “that you and he Avere unfriendly,” Avas subject to the same objections as interposed to the previous question. The statement of the Avitness, Avhen previously asked if he Avas friendly or unfriendly Avith defendant, —that, “I don’t knoAV.; I have never been very friendly Avith him,” — Avas evasive, and not a statement that he Avas unfriendly to defendant. It was a statement, the rather, that he. Avas not unfriendly, unless the fact that he Avas not very friendly Avith him, made him so. To sIioav his true feelings tOAvards defendant, it Avas permissible, therefore, to ask him if he had not previously stated to Mr. Browne, that he was unfriendly to defendant. But, the question contained, besides this, other matter inquired about Avhich Avas improper, and the court was not bound to separate the good from the bad, sustaining the one and ruling out the other, and committed no error in sustaining the objections to the entire question.
3. One Prickett for the State, testified that he saw the defendant at the depot, about 4 or 5 o’clock in the afternoon of the day deceased was killed, talking with J. A. Bingham; that defendant’s wife was with him; that he looked like he always did; did not cry, and there was nothing unusual about him to attract witness’ attention; saw nothing like frenzy or furor, and that Mr. *26Bingham left defendant and his wife and came to where witness was, some 25 feet away. Defendant asked the witness: “Did you not, when Mr. Bingham left Nath, after the conversation with him at the depot, and came to where you were, say to Mr. Bingham in substance, ‘What is the matter with Nath?’ and did not Mr. Bingham reply in substance, ‘Nath says Will Braxdall has got his daughter big,’.and did you not reply in substance, T knew something was the matter, I saw he had the devil in him?’ ” Bingham had testified that defendant at this conversation was in a very excited state and crying. The testimony of Prickett tended to contradict Bingham, whose evidence was introduced under the plea of insanity, to show the state and condition of defendant’s mind, not long before the killing. It is clear enough, that the witness, Prickett, had testified on this subject, to a different state of facts, than that deposed to by Bingham. The question propounded by counsel was for the purpose of laying a predicate to contradict Prickett, and to sustain the witness, Bingham, and should have been allowed to be answered.
4. The witness, Oruikshank, was asked by defendant: “Would you consider a man who knew the difference between right and wrong, but who, on account of a disease of the brain, congenital, hereditary or acquired, hadn’t the will power or the volition to refrain from doing the wrong act, sane or insane?” This question was objected to by the State, on the ground, that the witness was not shown to be an expert, and was incompetent to answer such a question. “A non-expert witness cannot give an opinion except when it is derived from facts known to him and disclosed by him to the jury. A hypothetical state of facts is, therefore, not an allowable basis for the opinion of a non-expert.” — Burney v. Torrey, 100 Ala. 157; Yarbrough v. The State, 105 Ala. 54, 55.
This witness stated that he had known the defendant for 30 years — ever since he was a boy — and had seen and talked with him during that time, once or twice a week; that he had worked with the defendant; had met him at church and other public gatherings, and showed *27that he knew him well. The State asked him the question: “From your acquaintance with the defendant, and conversations with him, and from your observation of him, and what you heard and saw him say and do, and the manner in which he acted, was he or not, in your opinion, sane or insane, of sound or unsound mind?” A non-expert witness, who is shown to have the acquaintance that this one had with defendant, can testify as to his opinion of his sanity or insanity, or that he is 01 sound or unsound mind. That he may so testify, is no longer open for discussion. There ivas no error, therefore, in allowing him to answer, that defendant was in his opinion of sound mind. The question was sufficiently definite as to time, and if defendant apprehended injury as to that matter, he had the opportunity of righting it, on the cross-examination. — Stubbs v. Houston, 33 Ala. 555; Yarbrough v. State, supra. What is said as to this witness, applies to the admissibility of the evidence to the same effect, of many other witnesses, excepted to and admitted by the court.
5. The letter of Lena, the daughter of defendant, set out in the record, was admitted in evidence very clearly, under the plea of “not guilty by reason of the insanity of defendant.” The court, during the progress of the trial, announced, when evidence was offered calling for the ruling, and very properly we think under the facts of the case, that the guilt or innocence of the deceased of improper relations with defendants’ daughter, was not a material question in the case, and declined to allow any testimony as to the innocence of deceased. • In the closing argument of counsel for the State, while commenting on and discussing the letter of Lena Bagland, he argued to the jury, that they could and should draw unfavorable inferences against defendant because he had not brought Lena and put her on the witness stand, there to testify, that deceased had seduced her. To this course of argument defendant’s counsel objected, and moved the court that such argument be not allowed before the jury. Counsel making the argument, contended that it was proper, and the court overruled defendant’s objection and allowed the State’s- counsel to *28proceed with such argument, to which the defendant excepted. It is very clear, that under he facts of the case, and under the plea of not guilty, the guilt or innocence of deceased in the seduction of defendant’s daughter was not an issuable fact. If Lena had been present, the State would not have introduced her for the purposes stated, nor would it have been allowable for defendant to have done so. It is equally clear, that the information received at the hour it was, by defendant, through his daughter’s letter, whether she told the truth or not, —that deceased had seduced her, — was competent evidence to be considered with all the other evidence in the case, as bearing on the plea of insanity. Her presence and swearing to the guilt of deceased, could have added nothing to the force or effect of the information imparted to defendant by her letter. The argument indulged by counsel should not have been permitted, and the court erred in not suppressing it.
6. There was no error in allowing the general charge of the court, — written on the requirement of defendant under the statute, — to be taken out by the jury on their retirement. The statute provides, that charges given must be taken by the jury with them on retirement. This applies as well to the general charge when in writing, moved for by either party, as to written charges asked for by either when given. It would seem one of the purposes defendant had in requiring the main charge to be in writing was, that the jury might have it before them on their retirement. — Code, § § 3327, 3328.
7. The court in its general charge stated, that, “Applying these principles [which he had been laying down as to the crime of murder] to the case at bar, the court charges you as a matter of law, as applied to the facts of this case, that the deféndant did have cooling time, and that if he was sane at the time of the homicide, the offense, if any was committed, would not be manslaughter but murder.”
In Keiser v. Smith, 71 Ala. 485, this court said: “The criterion (whether the blood had time to cool) is not alone how many days or hours had elapsed since the provocation was given, although this consideration is of *29vast significance in ascertaining the main inquiry. (Citing Dolan v. Fagan, 63 Barb. (N. Y.) 73; 1 Water. Tresp. § 268; 1 Hilliard on Torts (4th ed.), 197, n. b.) What constitutes a sufficiency of cooling time, or of provocation, is necessarily a question of law, and not of fact; the court being required to decide it preliminarily to the admission or exclusion of evidence offered in mitigation, analogous to the rule governing in cases of homicide.” — 2 Bish. Or. Law, §§ 712, 713, and authorities cited; Felix v. The State, 18 Ala. 720; Stillwell v. The State, 107 Ala. 210. If the defendant had shot the deceased “immediately upon hearing of the wrong to his daughter, and in the heat of passion engendered by the fact coming to his knowledge, all the facts would have been admissible to eliminate the element of malice from the act, by referring it to passion which had not ban time to cool, thus reducing the homicide [under the plea of not guilty] to manslaughter.”' — Rogers v. The State, 117 Ala. 14; Robinson v. The State, 108 Ala. 16; McNeill v. State, 102 Ala. 126; Hooks v. The State, 99 Ala. 166. Iri the last cited case, appears the expression, to the effect, that cooling time is a question of fact for the determination of the jury. • This is contrary to the generally received doctrine on the subject, and to that extent that decision must be disapproved.
In this case the defendant’s testimony showed that he first saAv his daughter’s letter about 3 o’clock in the afternoon, and this was the .first time he had heard of her alleged seduction. He further testified, that it was almost dark AA'hen he shot the deceased. The Aveight of the testimony is, that the shooting occurred not far from 7 o’clock in the evening. One Avitness fixes the precise number of minutes after seven when it occurred. Defendant further testified, that after his Avife showed him the letter, he and she Avent to toAvn from where they lived, 'at Knoxville, and saAv deceased and showed him the letter and asked him what he Avas going to do about it; that deceased held the letter in his hand trembling, for 15 or 20 minutes, and said he did not understand it, AA'hen defendant told him, “You see what Lena says,” Avhen deceased said, “It might have been somebody else,” *30and aslced what are you going to do about it, and defendant told him he would have to marry her, and deceased said, he would not do so; that he then left, and went to Knoxville, to look for Lena, at her gfa.ndm.otlu er’s, and returned to the Southern depot, and met with J. A. Bingham; that he came on back and passed on the opposite of the street from deceased, and when opposite to him, he folded his arms and looked at hint for five minutes; then went to Chambers’ bar and took part of a drink, and came back to the shop of deceased and shot him; that he did not know how many times he shot, but did know he went there to shoot him; that after he 'Saw deceased the first time, he got the pistol he shot him with from one Hedden, and gave him his watch and chain; that he told Chambers, when he took the drink, he was going to do something he did not like to do; that he met Bowie after the shooting, who asked him whom he had shot, and he told him that g=“0f a b — , Will Braxdall, and that he was looking for him and shot him as soon as he discovered him. The other evidence showed that deceased was unarmed, sitting in an arm chair, with one leg over one of its arms, when defendant walked up, and shot him, first, in the chair, and twice after he had fallen out. On this state of uncontradicted evidence, there was no error in the charge of the court to which exception was taken, that defendant had cooling time after hearing of the alleged seduction of his daughter by deceased, and that if he was sane at the time of the homicide, the offense would not be manslaughter but murder.
8. The part of the general charge of the court on the subject, was a correct definition of manslaughter as defined in the same words in Mitchell v. The State, 61 Ala. 32. But whether the charge was correct in this respect or not, could have made no difference. There was no occasion for the court to charge on the constituents of manslaughter in the case, since the evidence set out in the bill of exceptions shows, that defendant, if guilty at all, was guilty of murder. — Pierson v. The State, 99 Ala. 148; Compton v. The State, 110 Ala. 35; Dennis v. The State, 112 Ala. 66.
9. The defendant requested 69 written charges, 21 of *31which were refused aud 48 given. We have examined those refused, and find they were either illegal, argumentative and misleading or substantial duplicates of some of the ones ivhich were given. There was no reversible error in the court’s refusal to give them.
For the errors indicated, the judgment and sentence of the lower court will be reversed and annulled, and the cause remanded.