The act creating the 14th judicial circuit, approved .March 6, 1903, page 88, fixed the terms of the circuit court for Walker county — the first term *64beginning the first Monday .in January, “and may continue until the 30th day of June, except the two Aveeks beginning the third Monday in February.” The second term, “shall be held on the-first Monday in September and may continue until the 31st day of December.”
The court at Avhich the indictment in this cause AAras found was convened and organized on Monday, the 16th day of March, 1903. It is now contended that the court Avas not legally organized, because, as urged by counsel, the time for organizing the court for the term as fixed by the act creating it had passed, and the court stood adjourned by operation of laAv until the time for holding the next term, Avhich began the first Monday in September. In support of this contention section 922 of the Code is cited. That section reads as follows: “When any circuit judge fails to attend, the court stands adjourned from day to day until 3 o’clock in the afternoon of the third day, AAdien it is adjourned until the next succeeding term.” This section can haAre no possible application under the facts in the case before us. On the day fixed in the act for the commencement of the first term, namely, the first Monday in January, there Avas no such court in existence, nor a judge of such court. The act Avas not approved until March 6, Avlien it Avent into immediate effect, and a judge of said court Avas immediately thereafter appointed. All this occurring within the period covered by the first term as fixed by the act The act provides that a judge and solicitor of the circuit created shall be appointed by the Governor as soon as practicable after its passage, thus clearly, as Ave think, indicating a purpose and intention on the part of the legislature, that the act should go into immediate effect for all purposes. The court was. convened and regularly organized within the time for holding the first term, and in the opinion of the writer, was legally convened and organized. In this view McClellan, C. J., concurs; but the majority of the court are of a different opinion, holding that the effect of the act was not to fix a term of the court to begin on the first Monday in January, 1903, that time being prior to the passage of the act, and that *65in tlie act there is nothing to authorize the convening of the court for the holding of a regular term on a day in March, 1903.
Before entering upon the trial the court required the witnesses to be called and sworn. The defendant requested the court to examine George Dickinson, a small boy, as to his competency before having him sworn, which the court refused to do, and the defendant at the time excepted. The bill of exceptions states that “the court- told the witness not to be sworn at that time. The witness stood up with the other witnesses and was sworn, but the court’s attention was not called to it at the time.” If there was error in the court’s action, it was clearly without injury to the defendant, for it does not appear that this witness testified in the case, and the bill of exceptions purports to set out all of the evidence, and in doing so gives the names of the witnesses testifying. — Code, § 4333.
The predicate was sufficiently laid for the admission of dying declarations. It was shown that at the times the statements were made the declarant was under the belief that she could not recover from the wounds and that she would die from them. — Pulliam v. State, 88 Ala. 1; Hussey v. State, 87 Ala. 121.
The dying declarations were also objected to upon the ground that they were made while the party was under the influence of opiates. The evidence on this subject was by Dr. Miller, who testified, “that Mrs. Dickinson, after the first morning, was under the influence of morphine. That it did not make her flighty, but made her sleep some.” There was no merit in the objection and the court properly overruled it. In the course of the dying declaration made by the deceased, she referred to the defendant as the negro who had passed her house the day before and stopped and oiled his gun, and stated that Mrs Somerville could tell who it was; she also referred to him as the man who had worked for Captain Long the year before. The defendant objected to this testimony on the ground that it was not a part of the res gestae. This evidence tended to identify the defendant *66as tbe guilty party, and for that- purpose it was both competent and relevant, and the fact that the statement was made as a dying declaration, instead of under oath on the witness stand, rendered it none the less admissible. Like any other way or manner of description of the person, it furnished means of identification. For the same reason it was also competent for the State to prove by Mrs. Somerville that the negro seen in the front of Mrs. Dickinson’s house on the day before, oiling his gun, was the defendant. There was no error in overruling the defendant’s objection to the witness O’Rear’s statement as to the blood stains on the box lid.
The defendant offered to prove that he asked to be taken before Mrs. Dickinson for identification, but on the objection of the State, the court refused to allow this evidence. This testimony was properly excluded on the same principle and for the same reason that the refusal of a defendant to flee from the scene of his crime, cannot be proven by him. It is regarded in the light of an effort to make evidence in his own behalf. — Pate v. State, 94 Ala. 15; Johnson v. State, lb. 35, 40; Chamblee v. State, 78 Ala. 466.
There being no testimony tending to connect the negro referred to in the showing made by the witness Gene Miller, with the crime charged against the defendant, evidence of motive on the part of a third person was inadmissible. — Banks v. State, 72 Ala. 522; Levison v. State, 54 Ala. 520; Alston v. State, 63 Ala. 180; Prince v. State, 100 Ala. 144; Brown v. State, 120 Ala. 342.
The ruling of the court permitting the witness John Davidson to be recalled to testify was discretionary, and, therefore, not reviewable on appeal.
The remarks of the solicitor which the court refused to arrest upon defendant’s motion, were within range of legitimate argument, and no error was committed in this ruling by the court.- — Stone v State, 105 Ala. 60; McNeil v. State, 102 Ala. 121.
Charge 1'requested by the defendant, was condemned by this court in Allen v. Stale, 111 Ala; 80.
A reasonable doubt must be based upon the evidence *67in the ease, and not npon the argument of counsel, to authorize an acquittal.
Charge 2 which requested'an acquittal if a reasonable doubt was raised in the minds of the jury by the argument of counsel, was properlv refused. — Green v. State, 97 Ala. 59.
It is sufficient to say that similar charges to -3 and 4 have been repeatedly condemned by this court.
There was no error in the giving of the charge requested by the State. It certainly states the law.
For the error pointed out, the judgment will‘be reversed and the cause remanded, and the defendant will be held in custody until discharged by law.
Reversed and remanded.
McClellan, C. J., and Dowdell, J., dissenting.