From the facts shown in connection with the motion to quash the venire we are of the opinion that the names “Acey Blake” and A. F. Blake appearing on the venire were each intended to and did in fact designate a different person. Therefore, the case is noit brought within the principle which vitiates a special venire where ‘by repetition of names jurors are diminished below the requisite number, as in the cases of Darby v. State, 92 Ala. 9; McQueen v. State, 94 Ala. 50; Roberts v. State, 68 Ala. 515.
'The fact if it be a fact that one of those persons was not summoned or was absent at the trial was not ground for quashing the venire. — Webb v. State, 100 Ala. 47; Arp v. State, 97 Ala. 5; Johnson v. State, 94 Ala. 35; Johnson v. State, 47 Ala. 9.
The defendant was indicted jointly with one Lillian Gardner for the alleged murder of his wife. Severance was had and he was tried and convicted separately. After proving the undisputed 'fact that the deceased was killed by a pistol shot, the State introduced a witness who testified, among other things, that in a conversation about the conduct of one Thomas towards Mrs. Gardner the defendant said “he would kill anybody who interfered with him and that woman.”
Mere threats, when directed to a particular person,are not evidence of malice or evil purpose towards another, nor can threats which are. merely general be considered as menacing any particular person; but the threat in question was neither so restricted nor general. It comprehended those who might interfere with defendant’s relations with Mrs. Gardner; and if there was evidence indicating that defendant believed the deceased so interfered and that he instigated her death, the threat was competent to be shown, and the question of whether the threat applied to her was for the jury.—Ford v. State, 71 Ala. 385; Jordan v. State, 79 Ala. 9; Redd v. State, 68 Ala. 492.
The threat against whoever might inteidere with defendant and Mrs. Gardner, and likewise acts of undue intimacy between him and her were admissible as tending to show his infatuation for that woman *64and consequently as disclosing a motive for inciting the crime.—Johnson v. State, 94. Ala. 35. And as further evidence of motive adduced by an actual interference, it was proper to prove the prosecution for adultery, by introducing the affidavit and "warrant in that case. Evidencei of motive whether proceeding from malice or other cause is always admissible for the prosecution as making a conspiracy probable. Of itself such evidence may be insufficient, but whether it shall precede or come after that disclosing acts of participation in the conspiracy is in the discretion of the. court. Wright on Grim. Conspiracy, 214.
To the incrimination of defendant as a conspirator with, or as an accomplice of the actual slayer, direct and positive proof that he incited or encouraged her to the killing was not essential provided there was proof of circumstances from which if could .properly have been inferred that he did so.—Martin v. State, 89 Ala. 115; Jordan v. State, supra.
Here there was evidence, tending to show that Mrs. Gardner was defendant’s paramour; that he was at enmity with the deceased and had several times threatened her life; that she had commenced a prosecution against Mrs. Gardner for living with him in adultery; that on the day of the homicide, Mrs. Gardner being about to remove her trunks from defendant’s house, where she had been staying, the deceased came with an officer having a warrant to search those trunks; that when she ■ came to the house defendant threatened. to kill her and afterwards told Mrs. Gardner to make her get out; that upon his applying a vile epithet to the deceased she exhibited a pistol and said she Avould kill him if he did so again; that while the search was proceeding he called Mrs. Gardner into another room and said to her in a low Amice something others in the house could not understand, whereupon she returned to Avhere the search AA*as being conducted and after saying something to the deceased about an article some one had taken from the trunks, she snatched a pistol from the person of the deceased and shot her. This was evidence proper to be submitted to the jury on both *65tlie question of wbetlier tlie deceased came within tbe scope of tlie threat against tliose interfering and of whether she became a victim of that and other threats.
On an inquiry of saniity vel non the rule applicable to non-expert witnesses is that opinions opposed to sanity, are admissible only when stated in connection with the facts respecting tlie conduct abnormal or otherwise of the person whose sanity is questioned; but opinions affirming saniity.may be based on a mere negation of unnatural or peculiar conduct without a specification of facts.—Ford v. State, supra; Parsons v. State, 81 Ala. 577; Dominick v. Randolph, 124 Ala. 57. There was no infraction of the rule in the admission here of testimony on that subject.
A witness testifying for the prosecution with reference to Mrs. Gardner’s stay at defendant’s house said “defendant and Mamie [the deceased] lived happily and agreeably together until Mrs. Gardner went there.” A general objection to this being overruled the witness further testifying in the same connection said: “After Mrs. Gardner went there I would often see Mamie crying when I was with her.” The objection made to this statement though general should have been sustained. Manifestations of grief by the deceased not in defendant’s presence, were as to him res alios acta; the same as her spoken utterances would have been under like circumstances.
Though it be assumed that her grief was caused by defendant’s illicit amour, that fact except as disclosed to him could not have influenced his conduct and had no tendency to implicate him in (the killing. This testimony ivas, therefore, palpably irrelevant to the issue tried. It ivas, .however, well calculated to excite the jury to increased sympathy for the deceased, and to a correspondingly increased indignation against •the defendant. The pivotal question was whether the killing was of the slayer’s own volition or was participated in by the defendant by means of his counsel or encouragement. The determination of that question rested wholly in inference from circumstantial ev*66idence. It cannot be seen that the illegal evidence referred to did not illegally assist the inference necessary to the jury’s finding, and, therefore, its admission necessitates a reversal of the judgment.
Reversed and remanded.