The defendant (appellant) was tried under an indictment for murder and convicted of murder in the second degree. Taking the' exceptions in the order mentioned in appellant’s brief:
Apart from the consideration as to whether a sufficient predicate Avas laid, the court erred in permitting the witness R. H. Jones, who was the justice of the peace before whom defendant had been tried on preliminary trial, and who had taken the testimony of the witness, Albright,in writing, to testify as to what said witness’ testimony was. The writing was the best evidence of what he testified to. — Matthews v. State, 96 Ala. 62; Harris v. Slate, 73 Ala. 495.
*83There was no error in sustaining the objection by the State to the question to the witness Allen, “He didn’t say that he had beat up young Hammett, did he?” There was no evidence that the declaration called for was a part of the res gestae. — Sullivan v. State, 102 Ala. 136. 141-2.
The remark of deceased, to Maggie Hammett, was not such dying declaration as came within the case above referred to and should have been excluded. — Sullivcm’s case, supra.
The question to the witness, Maxey, “Is it not a fact that you and Sanford are unfriendly on account of a whisky bill that you owe him?” was legitimate on cross-examination, in order to show the state of feeling between the witness and the defendant; consequently, the court erred in sustaining the State’s objection to this question. The objection of the State to the next question to said witness, to-wit: “Is it not a fact that you owe the defendant money for whiskey?” was properly sustained.
There is testimony tending to show that the deceased was in some difficulty in the kitchen, just prior to the killing; that he came from the kitchen into the store pursuing one Hammett and firing at her and saying, “I will kill the whole damned shooting match.” One of the matters of defense set up is. that deceased was in the act of attempting to kill Hammett, and the defendant had the right to kill him to prevent the commission of said crime. As to whether the defendant could justify on this ground would depend on the attitude of Hammett to the original difficulty, and it would be necessary to prove the circumstances of said original difficulty in order to determine that matter. Consequently, the court was in error in refusing to allow the defendant to prove the particulars of that difficulty. — Wood v. Stable, 128 Ala. 27; Karr v. State, 106 Ala. 1.
The numerous questions of the State, to the witness Maggie Hammett, inquired about irrelevant and immaterial matter which should have been excluded, except that it was legitimate to show the part taken by de*84ceased and her brother in the fight in the kitchen, and that it was a continuous fight or chase until the defendant intervened, if such were the facts. As to what she said about going off from defendant’s store, and saying that everything in the store was hers, and opening up a store of her own; saying that Achors was shot for nothing; what was said about the deceased “Meddling with Sanford;” about Achors asking her if there were any cartridges in the pistol; were immaterial and rendered particularly so by her uniform answer, “I don’t remember.”
The question of the witness, M. F. McDonald, as to what Maggie Hammett said to him, after the shooting, and the answer thereto, to-wit: that everything in the store was hers, were clearly irrelevant as the record stood. — Carter v. State, 133 Ala. 160, 162.
It was competent for the State to ask the witness Maggie Hammett, “What was her condition as to consciousness then?” as she had previously testified that she had become unconscious, and it was proper to know whether she had fully regained her consciousness. The objections of the defendant to this question were properly overruled.
The court properly sustained the objection of the State to the question to the witness Boyd, “Did you hear the man say that he was going to kill anybody?” The question was too general, not stating which man was referred to, nor showing that it had any reference to- any one connected with this case. — Pitts v. State, 140 Ala. 70, 83.
The objections of the State to the questions to the defendant when on the stand, as to the particulars of the prior difficulty between defendant and deceased, were properly sustained. — Rutledge v. State, 88 Ala. 85; Jones v. State; 116 Ala. 469; Harkness v. State, 129 Ala. 71, 78; Longmire v. State, 140 Ala. 66, 68.
The objections by the State to the questions to Dr. Hill, about smelling whiskey on the deceased and as to whether he had any whiskey in him, should have been overruled. This evidence was competent for the purpose of showing the state of his mind when he made the state*85ment. — Campbell v. State, 23 Ala. 44, 58; John Morris v. State, in MS.
The remarks of counsel for defendant, in argument, were in regard to a matter, the evidence of which had been excluded from the jury, and the objection to the remarks was properly sustained.
Charge 16, requested by the defendant, asserts a correct principle of law, and should have been given. Bowen v. State, 140 Ala. 66, 70; Pickens v. State, 115 Ala. 42, 50.
Charge 18 requested by the defendant was properly refused. — Hampton v. State, 133 Ala. 180; Koch v. State, 115 Ala. 100.
Charge “A” requested by the defendant was properly refused. The charge does not state that the theories are based on the evidence, and, besides, the jury may be unable to reconcile the evidence, and yet may deem that which supports one theory credible, and that which supports another incredible.
The record shows that the verdict of the jury was brought in and read on Sunday at 12:15 o’clock, “In the presence of the associate judge of the court, the sheriff, the jury and the defendant;” that the jury was discharged, and, on the next day, (Monday) “The defendant being in open court, and said verdict being read in open court and entered by the court,” etc., the judgment of the court was pronounced. This was legal, in accordance with the previous decisions of this Court, and the defendant had the same opportunity to poll the jury as he would have had, if the verdict had been brought in on a juridical day. — Simmons v. State, 129 Ala. 41, 47; Chamblee v. State, 78 Ala. 466, 469; Reid v. State, 53 Ala. 402, 406, 410.
There was nó error in sustaining the challenge by the State of the juror Tally for cause. Although the said juror first answered that he had no fixed opinion against capital or penitentiary punishment; yet, when he was further questioned by the solicitor, he acknowledged that he had, on the day previous, sworn that he did have a fixed opinion against capital punishment, and when *86asked which statement was correct'he replied, “That the statement he made on yesterday was.” This was equivalent to saying that he had a fixed opinion against capital punishment. It was made the duty of the court to ascertain the qualifications of the juror, and when the court ascertains that he is disqualified, either by his own oath or otherwise, it is its duty not to allow him to be sworn, when challenged. — Code of 1896, §§ 5010, 5018.
The juror Barnett was evidently sick and not in a fit condition to serve on the jury and was properly excused. Code 1896, §§ 5019-20. And there was no reason why his place should not be supplied without proceeding anew to empanel another jury. — Yarbrough v. State, 105 Ala. 48.
It was not necessary to delay the business of the court by sending for jurors whose names were drawn from the additional slips placed in the box, and who resided two miles from the court house. The court pursued the proper course. — Local Acts, 1900-01 p. 2002.
The judgment of the court is reversed and the cause remanded.
Tyson, Dowdell, Anderson and Denson, J.J., concurring.