BBICKELL, C. J.
1. The indictment is in the form prescribed by the Code, and avers all the elements and constituents of murder in the first degree, which may be punished capitally — by death, or by imprisonment in the penitentiary for life. The defendant having pleaded not guilty, the primary duty of the court, a duty to be performed in the personal presence of the defendant, was the sétting a day for the trial of the [8]*8cause ; and the day having been set, at least ' one entire day prior thereto, the drawing of special jurors, not less than twenty-five nor more than fifty, as the court deemed necessary, to be summoned by the sheriff, under the order of the court, and added to the panel of petit jurors organized for the week ; the two constituting the venire (as it is termed in the statute), from which the jury for the trial were to be selected. — Or. Code of 1886, p. 134, note, § 10. A judgment of conviction on an indictment for an offense which may be punished capitally, cannot be supported, when drawn in question on error, unless it is shown affirmatively by the record, that there was by the court performance of these duties. Spicer v. State, 69 Ala. 159 ; Sylvester v. State, 71 Ala. 17 ; Posey v. State, 73 Ala. 490 ; Jordan v. State, 81 Ala. 20 ; Washington v. State, Ib. 35 ; Watkins v. State, 89 Ala.82. The present record does not affirmatively show that a day was set for the trial of the cause, nor that there was the drawing of the special jurors for the trial, as the statute requires. It appears rather from the record, that there was not observance of the statute in either respect.
If it were permissible to look to the record of this case when here at a former term, (Burton v. State, 107 Ala. 108), it would appear that there had been a trial on which there was a conviction of murder in the second degree, operating an acquittal of murder in the first degree, if' the acquittal had been pleaded specially by the defendant, withdrawing the case from the operation of the statutes in regulation’of trials for offenses subject to capital punishment.—Jordan v. State, supra. But we can not supplement the deficiency of records by referring to the records of the former terms of this coui’t, though it may be a record in the particular case. And if the record was looked to, the error of the court would not be cured. The acquittal of murder in the first degree, under the practice established in DeArman v. State, 77 Ala. 10, emphasized by the rule of practice promulgated by this court December 18, 1887 (82 Ala. viii), requires the acqxxittal to be pleaded specially to avoid a convictioxi of that offense. The record does not disclose the filing of the plea, and as the case is presented, there was not the observance of the mandatory requirements of the statute; the failure to observe [9]*9them is an error necessitating a reversal of the judgment of conviction.
2. The map or diagram, prepared by counsel assisting the solicitor, of the place of the homicide, indicating the locality of objects to -which there was much of reference in the testimony, upon which the line or route of travel could be traced it was alleged the defendant followed in going to and returning from the place of the homicide, taken in connection with the evidence of the draughtsman as to its accuracy, it was proper to introduce and exhibit to the jury ; and it was proper to permit other witnesses to refer to it in explanation' or elucidation of their testimony.—Burton v. State, 107 Ala. 108. In actions of ejectment, it is a frequent practice to introduce maps or diagrams of the locus in quo in controversy, for the purpose of ascertaining its boundaries or otherwise identifying it. — 1 Whart. Ev., (2ded.), § 677; Nolin v. Parmer, 21 Ala. 66. In Shook v. Pate, 50 Ala. 91, it was said by Pjstbjrs, C. J.: "A diagram is simply an illustrative outline of a tract of land, or something else capable of linear projection, which is not necessarily intended to be perfectly correct and accurate. In many instances this cannot be made to appear. At best, it is but an approximation ; and in this sense, it is indifferent by whom it is made. In this case, it was not, offered as a plat of the survey of the lands in question, but only as a means of explanation of the witnesses’ description of the lands. This was competent and relevant. A witness may as well speak by a diagram or linear description, when the thing may be so described, as by words.” It is true, that testimony prepared by a party for the use of a trial, is not regarded with favor, and should be rigorously scrutinized. Consciously or unconsciously, maps or diagrams of localities they prepare or cause to be prepared, may be a representation more favorable to themselves than would be a delineation or representation prepared by an indifferent stranger, not having any regard to the uses to which it was to be applied. This is an infirmity incident to all testimony, oral or written. How far the map or diagram was an accurate representation, was matter for the consideration of the jury, as was the credibility of the draughtsman in support of its accuracy; as was also the extent to which they were aided by it in understand[10]*10ing the testimony having reference to the localities, distances and all the various objects shown by it. Having been exhibited to the jury and used by the witnesses in explanation or elucidation of their testimony, the map or diagram would not have served all its purposes as an instrument of evidence, if the jury had not been permitted to take it with them on their retirement. As was very properly said by Poland, C. J., in Wood v. Willard, 36 Vt. 82, s. c. 84 Am. Dec. 659, if the jury were not to see the map or diagram at all, it was of no use ; and if they were to see it, they should have it before them until the case was ended by a verdict. The rule was doubtless, formerly, as stated in Campbell v. State, 23 Ala. 83, that it was a matter of discretion with the trial court whether a map or diagram should go to the jury; but the more recent authorities hold that the jury should, on their retirement, take it with them.
3. The declarations of the deceased as he was leaving home on the afternoon of the homicide, having a gun and pistol, that' “he was going out to shoot some,” were admissible evidence. They were “verbal acts indicating a present purpose and intention,” and admissible like any other evidence of material facts. — 1 Green. Ev., § 198; Pitts v. Burroughs, 6 Ala. 733. Whether it . was permissible for the witness to add that these were the last words he ever heard the deceased utter, is not before us for consideration, as it does not appear from the bill of exceptions, objection was made to their admissibility. .
4. It is a settled rule in this court, that if a witness who has been examined in a criminal case before a tribunal of competent jurisdiction, is not subsequently, after diligent search, found within the jurisdiction of the court, or if it be shown that his place of permanent residence is without the State, it is admissible to prove the .substance of the evidence he gave formerly.—Burton v. State, 107 Ala. 68; Mitchell v. State, 114 Ala. 1, and authorities cited. Without repetition or particular discussion of the evidence, it is enough to say that the residence of the absent witness, Mrs. D. A.
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BBICKELL, C. J.
1. The indictment is in the form prescribed by the Code, and avers all the elements and constituents of murder in the first degree, which may be punished capitally — by death, or by imprisonment in the penitentiary for life. The defendant having pleaded not guilty, the primary duty of the court, a duty to be performed in the personal presence of the defendant, was the sétting a day for the trial of the [8]*8cause ; and the day having been set, at least ' one entire day prior thereto, the drawing of special jurors, not less than twenty-five nor more than fifty, as the court deemed necessary, to be summoned by the sheriff, under the order of the court, and added to the panel of petit jurors organized for the week ; the two constituting the venire (as it is termed in the statute), from which the jury for the trial were to be selected. — Or. Code of 1886, p. 134, note, § 10. A judgment of conviction on an indictment for an offense which may be punished capitally, cannot be supported, when drawn in question on error, unless it is shown affirmatively by the record, that there was by the court performance of these duties. Spicer v. State, 69 Ala. 159 ; Sylvester v. State, 71 Ala. 17 ; Posey v. State, 73 Ala. 490 ; Jordan v. State, 81 Ala. 20 ; Washington v. State, Ib. 35 ; Watkins v. State, 89 Ala.82. The present record does not affirmatively show that a day was set for the trial of the cause, nor that there was the drawing of the special jurors for the trial, as the statute requires. It appears rather from the record, that there was not observance of the statute in either respect.
If it were permissible to look to the record of this case when here at a former term, (Burton v. State, 107 Ala. 108), it would appear that there had been a trial on which there was a conviction of murder in the second degree, operating an acquittal of murder in the first degree, if' the acquittal had been pleaded specially by the defendant, withdrawing the case from the operation of the statutes in regulation’of trials for offenses subject to capital punishment.—Jordan v. State, supra. But we can not supplement the deficiency of records by referring to the records of the former terms of this coui’t, though it may be a record in the particular case. And if the record was looked to, the error of the court would not be cured. The acquittal of murder in the first degree, under the practice established in DeArman v. State, 77 Ala. 10, emphasized by the rule of practice promulgated by this court December 18, 1887 (82 Ala. viii), requires the acqxxittal to be pleaded specially to avoid a convictioxi of that offense. The record does not disclose the filing of the plea, and as the case is presented, there was not the observance of the mandatory requirements of the statute; the failure to observe [9]*9them is an error necessitating a reversal of the judgment of conviction.
2. The map or diagram, prepared by counsel assisting the solicitor, of the place of the homicide, indicating the locality of objects to -which there was much of reference in the testimony, upon which the line or route of travel could be traced it was alleged the defendant followed in going to and returning from the place of the homicide, taken in connection with the evidence of the draughtsman as to its accuracy, it was proper to introduce and exhibit to the jury ; and it was proper to permit other witnesses to refer to it in explanation' or elucidation of their testimony.—Burton v. State, 107 Ala. 108. In actions of ejectment, it is a frequent practice to introduce maps or diagrams of the locus in quo in controversy, for the purpose of ascertaining its boundaries or otherwise identifying it. — 1 Whart. Ev., (2ded.), § 677; Nolin v. Parmer, 21 Ala. 66. In Shook v. Pate, 50 Ala. 91, it was said by Pjstbjrs, C. J.: "A diagram is simply an illustrative outline of a tract of land, or something else capable of linear projection, which is not necessarily intended to be perfectly correct and accurate. In many instances this cannot be made to appear. At best, it is but an approximation ; and in this sense, it is indifferent by whom it is made. In this case, it was not, offered as a plat of the survey of the lands in question, but only as a means of explanation of the witnesses’ description of the lands. This was competent and relevant. A witness may as well speak by a diagram or linear description, when the thing may be so described, as by words.” It is true, that testimony prepared by a party for the use of a trial, is not regarded with favor, and should be rigorously scrutinized. Consciously or unconsciously, maps or diagrams of localities they prepare or cause to be prepared, may be a representation more favorable to themselves than would be a delineation or representation prepared by an indifferent stranger, not having any regard to the uses to which it was to be applied. This is an infirmity incident to all testimony, oral or written. How far the map or diagram was an accurate representation, was matter for the consideration of the jury, as was the credibility of the draughtsman in support of its accuracy; as was also the extent to which they were aided by it in understand[10]*10ing the testimony having reference to the localities, distances and all the various objects shown by it. Having been exhibited to the jury and used by the witnesses in explanation or elucidation of their testimony, the map or diagram would not have served all its purposes as an instrument of evidence, if the jury had not been permitted to take it with them on their retirement. As was very properly said by Poland, C. J., in Wood v. Willard, 36 Vt. 82, s. c. 84 Am. Dec. 659, if the jury were not to see the map or diagram at all, it was of no use ; and if they were to see it, they should have it before them until the case was ended by a verdict. The rule was doubtless, formerly, as stated in Campbell v. State, 23 Ala. 83, that it was a matter of discretion with the trial court whether a map or diagram should go to the jury; but the more recent authorities hold that the jury should, on their retirement, take it with them.
3. The declarations of the deceased as he was leaving home on the afternoon of the homicide, having a gun and pistol, that' “he was going out to shoot some,” were admissible evidence. They were “verbal acts indicating a present purpose and intention,” and admissible like any other evidence of material facts. — 1 Green. Ev., § 198; Pitts v. Burroughs, 6 Ala. 733. Whether it . was permissible for the witness to add that these were the last words he ever heard the deceased utter, is not before us for consideration, as it does not appear from the bill of exceptions, objection was made to their admissibility. .
4. It is a settled rule in this court, that if a witness who has been examined in a criminal case before a tribunal of competent jurisdiction, is not subsequently, after diligent search, found within the jurisdiction of the court, or if it be shown that his place of permanent residence is without the State, it is admissible to prove the .substance of the evidence he gave formerly.—Burton v. State, 107 Ala. 68; Mitchell v. State, 114 Ala. 1, and authorities cited. Without repetition or particular discussion of the evidence, it is enough to say that the residence of the absent witness, Mrs. D. A. Sox, was shown to be in Tallapoosa, Ga., and that the witness, Evans, showed his ability to state the substance of the evidence she had given on the former trial, on her examination in chief and on the cross-examination, render[11]*11ing the secondary evidence admissible. — 1 Green. Ev., § 166.
5. The credit of a witness may be impeached by showing that on some former occasion he has made statements inconsistent with his testimony upon the trial. But before this can be done, a proper predicate must be laid — the witness must be inquired of as to the time, place, and person involved in the supposed contradiction. — 1 Green. Ev., § 462. A proper predicate was laid for the contradiction of the witness for the defendant, Sallie E. Sox. The contradictory statements imputed to her, were involved in her examination before the coroner’s jury and her examination before the grand jury. The inquiry directed her attention to her statements on these examinations, and was sufficiently definite to enable her to recall and explain all that she may have said in the course of the examinations. The competency of a grand juror to disclose the testimony of a witness examined before-the grand jury, for the purpose of ascertaining whether it is consistent with the testimony of the witness given on the trial before the court, is declared by statute. — Cr. Code of 1886, § 4351.-
6. When the case was formerly before the court, the statements and confessions imputed to the defendant, were declared admissible as evidence ; their credibility, their weight or effect being matter for the consideration and determination of the jury, in view of all the circumstances attending them. There is no change of evidence as to the voluntariness of these statements or confessions, and they were admissible. The like observation applies to the admissibility of the notes found on the body of the deceased.—Burton v. State, 107 Ala. 108. There are other objections to the admissibility of evidence, which have been considered, but we do not deem it necessary to pass upon them severally. They are met by former decisions of this court, or by the former decision .in this case, and by what we have now said and decided.
7. The general principle by which the relevancy of evidence is tested, is well defined ; but there is muela of difficulty in its application to the varying facts and circumstances of particular cases. The test, it it said by Wharton, is whether the particular fact or circumstance proposed to be introduced, “conduces to the proof of a [12]*12pertinent hypothesis ; a pertinent hypothesis being one which, if sustained, would logically influence the issue.” 1 Whart.'Ev., § 20. It is said by Greenleaf, that it is not necessary, that the evidence should bear directly upon the issue ; that it is admissible if it tends to prove the issue, or constitutes a link in the chain of proof, although alone it might not justify a verdict in accordance with it.- — 1 Green. Ev., § 61a. There was evidence introduced by the State, the tendency of which was to trace to the possession of the defendant the revolver it is alleged the deceased had at the time of the homicide; and which has also a tendency to show that the defendant had it when returning home from the place of the homicide. The tendency of the evidence introduced by the defendant, was in exclusion of the probability that if he had the revolver at the time and place referred to by the witnesses for the State, Foster and Mrs. D. A. Sox, he could not prior to his arrest, have disposed of or' concealed it, elsewhere than in or on the dwelling and premises of his father — his home. Tested by the rules we have stated, we are. of opinion, the father should have been permitted to testify, that on the next morn-, ing after the homicide, and the arrest of the defendant, he made search of his dwelling and premises, without finding the revolver. The significance of the evidence, will depend upon the character of the search, as to which there will be opportunity for cross-examination. The fact of the search and ■ the failure to find the revolver, taken in connection with the evidence having a tendency to exclude the probability that if the defendant had it at the time and place referred to by Foster and Mrs. Sox, he could not have disposed of or concealed it elsewhere than in his father’s house, or about the premises, is not wholly foreign from the case. In itself, it may be weak and inconclusive ; its weight is for the consideration of the jury. We cannot say that it is without tendency to support a pertinent hypothesis involved in the issue upon which the jury were to render a verdict. Grave as is the duty resting upon the court to guard against the introduction of irrelevant evidence, the duty is of equal gravity, to submit to the jury all evidence of facts having a tendency, though remote, to the elucidation of the case in any of its aspects.
. 8. The several instructions requested by the defend[13]*13ant and refused, have been examined; and we do not find there was error in the refusing but one of them. Without analyzing and discussing the others in detail, it may be said, with the exception of the one to which we will refer presently, that they do not state correct legal propositions, or are involved, argumentative, or misleading. The instruction, that upon the facts hypothesized, the jury could properly disregard the evidence of the witness Ella Tollerson, should have been given.—A. G. S. R. R. Co. v. Frazier, 93 Ala. 45, and authorities cited. The instruction does not involve an arbitrary, or capricious, unreasoning rejection of the testimony of the witness, but the authority of the jury to disregard it, because of its infirmities. And surely it cannot be in-; sisted, that it was the duty of the jury to accept or regard it, to give force to it in making up their verdict, if it was infected with the infirmities hypothsized.
9. Several of the instructions given at the instance of the State, purport to be in explanation of instructions given at the instance of the defendant, and others are in form, distinct from and independent of all other instructions. The first series of instructions are not explanatory, but they are in restriction, or qualification, or modification of the instructions which had been given at the instance of the defendant. This is their real nature and effect, from which they cannot be relieved by entitling them as explanatory. If the instructions needed restriction, or qualification, or modification, they should have been refused; but having been given, it was not within the province of the court subsequently, to lessen their force and effect, by restrictions, modifications, or qualifications.—Eiland v. State, 52 Ala. 322. We do not discover error in the other instructions.
For the errors pointed out, the judgment must be reversed and the cause remanded; the defendant - will remain in custody until discharged by due course of law.
Reversed and remanded.