The special venire served on defendant contained the names of W. M. Knowlster and R. A. Stewart. These two persons were- drawn as petit jurors for the second week of the c-outrt, but no,t summoned. The -order of-the court was in conformity with the statute. — Code, § 5005. It. required that the defend-*77apt be served, with the names only of the petit jurors drawn and summoned for the second week of the court. It was not complied with. ■ The motion to quash- the venire, having been made before, the trial was entered upon, should have been granted. — Ryan v. The State, 100 Ala. 108; Thomas v. The State, 94 Ala. 74.
The objection taken to that portion of the dying declaration of deceased, which "were reduced to -writing, that “Bob Hadley alias Bob Smith was trying to shoot me at the same time,” because it was merely a statement of the opinion or conclusion of the deceased and of his belief -and not of a fact, is without merit. It ■was a -statement of a collective fact, the weight and credibility of which was for the jury. — 1 Mayfield’s Dig., p. 336, § 27.
Since this case must be retried we will refrain from intimating an opinion upon the question whether the evidence was prima facie sufficient' to establish the existence of a conspiracy between this defendant and the two others jointly indicted with him. The declarations or conduct of these two, not made or done in the presence of this defendant were not competent against defendant unless a conspiracy was shown to have existed between them; and if shown, then only such declarations made or conduct done by them or either of them in furtherance of the common design is competent. The principle upon -which such declarations or conduct are admitted is, that the conspirators, by the act of conspiracy “have jointly assumed to themselves the attributes of individuality so far as regards the prosecution of the common design; thus rendering whatever is said or done by any one in furtherance of that design, a part of Hie res gestae -and, therefore, the act of all.” However, before such evidence can be admitted, it is necessary, that a foundation should be laid by proof addressed to the court, prima facie sufficient to establish the existence of such a conspiracy. Such evidence wall generally, from the nature of the case, be circumstantial. And when received under the rule, it does not necessarily establish the conspiracy and common guilt of all, but its sufficiency and weight must be *78ultimately determined by the jury. — McAnally v. The State, 74 Ala. 9; Hunter v. The State, 112 Ala. 77.
We will not review in detail the rulings upon the admission of evidence, 'since what we have said will doubtless serve as a sufficient guide upon another trial.
The several written charges numbered 12, 13 and 14 were properly refused as being argumentative. Reversed and remanded.