DENSON, J.
Abb Hammond was convicted in Covington circuit court of murder in the first degree and sentenced to imprisonment in the penitentiary for life. From the judgment of conviction the 'defendant has appealed.
The motion to quash the venire was properly overruled. Section 5004 of the code of 1896 does not require that the presiding judge shall announce the names of the jurors as they are drawn from the.box; and while we think it is better practice for the clerk to make a list of the names immediately as they are drawn from the box by the presiding judge, it is unnecessary in this instance for us to decide that the statute is mandatory in this respect, as the bill of exceptions affirmatively shows that the list that was made by the clerk was composed of the identical names that were drawn by the presiding judge and placed in the envelope by the clerk, and, further, that the names served on the defendant were copies of the names on the list so made out, so that we are satisfied no injury could possibly have resulted from the manner in which the names of the jurors were drawn and disposed of, nor from the delay of the clerk in making the list. — Code 1896, § 4333. It is shown that a copy of the names of the jurors was served on the defendant one entire day before the day fixed for the trial. This was a compliance with the law.
Evidently there was a mistake in the names of the jurors Croxton and Hayes; but it is statutory, and has been many times decided by this court that this furnishes no ground for quashing the venire. — Code 1896, § 5007; Kimbrel's Case, 130 Ala. 40, 30 South. 454; Longmire’s Case, 130 Ala. 66, 30 South. 413. The court conformed to the statute in discarding the names of the two jurors and ordering two others to be summoned. — Code 1896, § 5007.
The exceptions to the ruling of the court on the admissibility' of evidence are numerous. The sixth, seventh, eighth, and ninth relate to the ruling permitting the state to prove that immediately after shooting the deceased the defendant shot the brother of the deceased. [87]*87In this there is no error. Shooting the brother was a part of the res gestae. — Seams’ Case, 84 Ala. 410, 4 South. 521; Smith’s Case, 88 Ala. 73, 7 South. 52; Plant’s Case, 140 Ala. 52, 37 South. 159. Evidence that some of the shot from the gun passed through the witness’ clothing was also of the res gestae and admissible.
The court properly limited the defendant to proof of the charges against the deceased for violation of the ordinances of the town. Details of the acts and conduct on the part of the deceased upon which the charges were based were incompetent and inadmissible. — Carden’s Case, 84 Ala. 417, 4 South. 823; Gordon’s Case, 140 Ala. 29, 36 South. 1009; Harkness’ Case, 129 Ala. 71, 30 South. 73. Moreover, the proof was without conflict that the deceased was carrying a concealed weapon and that the defendant saw the deceased when he concealed it — that the offense of carrying a concealed weapon was committed in defendant’s presence; and the defendant testified that he went up to arrest deceased for carrying the pistol concealed at that time, and for “other things” before. So defendant had the benefit of the evidence that he was an officer and attempting to arrest the deceased for an offense that was committed in his presence. The defendant was a policeman at the time the killing occurred, and as snch he had the authority, and it was his duty, to arrest persons for violations of the .ordinances of the town; and this he could do without warrant if the offense was committed in his presence. To submit to an arrest under such circumstances was the correlative duty of the deceased. In Russell on Crimes it is stated: “In all cases, whether civil or criminal, where persons have authority to arrest or imprison, and using the proper means for that purpose, are resisted in so doing, they may repel force with force, and need not give back; .and if the party making resistance is unavoidably killed in the struggle, the homicide is justifiable.” ■ — 1 Russell on Crimes, 665; Clements’ Case, 50 Ala. 117. “Social order and political government are dependent upon the observance of law by the citizen. The mandates of the law are executed by officers provided for [88]*88such purposes, and such officers are clothed by the law with the authority necessary to execute its mandates, and it affords them all the protection possible in the rightful performance of the duties imposed.”
There are two theories of the prosecution in this case. The first is that the defendant of his own malice, and not in the discharge of his duty, killed the deceased to avenge a personal, grievance. The second is that, if he was in good faith, attempting or intending to arrest the deceased, the circumstances did not authorize the use of the force employed. We think the evidence afforded an inference of the correctness of these theories. At the same time, the defendant’s resistance on the trial was, and is here, that in good faith he was, with knowledge on the part of the deceased that he was a policeman, attempting to arrest the deceased and have him make bond for an offense or offenses in violation of the. ordinances of the town committed in his presence. If the. defendant was in good faith attempting to arrest the deceased, and if deceased was armed with a pistol and at the time of the attempted arrest he manifested an intention to resist the arrest, and committed an overt act which manifested an intent to immediately use the pistol under such circumstances as were sufficient to create in the mind of a reasonable man, and if they did create in the mind of the defendant an honest belief that the deceased was going to draw the weapon and immediately fire on him in resistance of arrest, then the defendant was justified in firing first. — U. S. v. Rice, 27 Fed. Cas. 795, No. 16,153; Adams’ Case, 72 Ga. 85; Boykin’s Case, 22 Colo. 496, 45 Pac. 419; Morton v. Bradley, 30 Ala. 683.
Upon consideration of the evidence we think, and hold, that there was some evidence which tends to support the defendant’s theory, its weight, of course, was a question for the determinhtion of the jury. Upon these considerations we hold that the court erred in declining to' allow evidence of threats made by the deceased against the defendant and in declining to* allow evidence tending to show that the deceased was a turbu[89]*89lent dangerous and bloodthirsty character. — Green’s Case, 69 Ala. 6; Robert’s Case, 68 Ala. 156; Meyers’ Case, 62 Ala. 599; Burns’ Case, 49 Ala. 370; Jones’ Case, 116 Ala. 468, 23 South. 135; Gafford’s Case, 122 Ala. 54, 25 South. 10; Storey’s Case, 71 Ala. 329.
It was within the ir mi sable discretion of the court to allow the solicitor to recall witnesses for the defendant for the purpose of laying a predicate for their impeachment by proof of contradictory statements; and by calling them the state did not, as is insisted by the appellant, make them its witnesses. — Jones’ Case, 115 Ala. 67, 22 South. 566; Dudley’s Case, 121 Ala. 4, 25 South. 742; Thomas’ Case, 100 Ala. 53, 14 South. 621; Thompson's Case, 100 Ala. 70; 14 South. 878; Braham’s Case, (Ala.) 38 South. 919.
If a witness answers a question, and the answer is responsive, the party asking the question has no right to have the answer excluded. To acknowledge such right would be allowing the party to experiment. •
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DENSON, J.
Abb Hammond was convicted in Covington circuit court of murder in the first degree and sentenced to imprisonment in the penitentiary for life. From the judgment of conviction the 'defendant has appealed.
The motion to quash the venire was properly overruled. Section 5004 of the code of 1896 does not require that the presiding judge shall announce the names of the jurors as they are drawn from the.box; and while we think it is better practice for the clerk to make a list of the names immediately as they are drawn from the box by the presiding judge, it is unnecessary in this instance for us to decide that the statute is mandatory in this respect, as the bill of exceptions affirmatively shows that the list that was made by the clerk was composed of the identical names that were drawn by the presiding judge and placed in the envelope by the clerk, and, further, that the names served on the defendant were copies of the names on the list so made out, so that we are satisfied no injury could possibly have resulted from the manner in which the names of the jurors were drawn and disposed of, nor from the delay of the clerk in making the list. — Code 1896, § 4333. It is shown that a copy of the names of the jurors was served on the defendant one entire day before the day fixed for the trial. This was a compliance with the law.
Evidently there was a mistake in the names of the jurors Croxton and Hayes; but it is statutory, and has been many times decided by this court that this furnishes no ground for quashing the venire. — Code 1896, § 5007; Kimbrel's Case, 130 Ala. 40, 30 South. 454; Longmire’s Case, 130 Ala. 66, 30 South. 413. The court conformed to the statute in discarding the names of the two jurors and ordering two others to be summoned. — Code 1896, § 5007.
The exceptions to the ruling of the court on the admissibility' of evidence are numerous. The sixth, seventh, eighth, and ninth relate to the ruling permitting the state to prove that immediately after shooting the deceased the defendant shot the brother of the deceased. [87]*87In this there is no error. Shooting the brother was a part of the res gestae. — Seams’ Case, 84 Ala. 410, 4 South. 521; Smith’s Case, 88 Ala. 73, 7 South. 52; Plant’s Case, 140 Ala. 52, 37 South. 159. Evidence that some of the shot from the gun passed through the witness’ clothing was also of the res gestae and admissible.
The court properly limited the defendant to proof of the charges against the deceased for violation of the ordinances of the town. Details of the acts and conduct on the part of the deceased upon which the charges were based were incompetent and inadmissible. — Carden’s Case, 84 Ala. 417, 4 South. 823; Gordon’s Case, 140 Ala. 29, 36 South. 1009; Harkness’ Case, 129 Ala. 71, 30 South. 73. Moreover, the proof was without conflict that the deceased was carrying a concealed weapon and that the defendant saw the deceased when he concealed it — that the offense of carrying a concealed weapon was committed in defendant’s presence; and the defendant testified that he went up to arrest deceased for carrying the pistol concealed at that time, and for “other things” before. So defendant had the benefit of the evidence that he was an officer and attempting to arrest the deceased for an offense that was committed in his presence. The defendant was a policeman at the time the killing occurred, and as snch he had the authority, and it was his duty, to arrest persons for violations of the .ordinances of the town; and this he could do without warrant if the offense was committed in his presence. To submit to an arrest under such circumstances was the correlative duty of the deceased. In Russell on Crimes it is stated: “In all cases, whether civil or criminal, where persons have authority to arrest or imprison, and using the proper means for that purpose, are resisted in so doing, they may repel force with force, and need not give back; .and if the party making resistance is unavoidably killed in the struggle, the homicide is justifiable.” ■ — 1 Russell on Crimes, 665; Clements’ Case, 50 Ala. 117. “Social order and political government are dependent upon the observance of law by the citizen. The mandates of the law are executed by officers provided for [88]*88such purposes, and such officers are clothed by the law with the authority necessary to execute its mandates, and it affords them all the protection possible in the rightful performance of the duties imposed.”
There are two theories of the prosecution in this case. The first is that the defendant of his own malice, and not in the discharge of his duty, killed the deceased to avenge a personal, grievance. The second is that, if he was in good faith, attempting or intending to arrest the deceased, the circumstances did not authorize the use of the force employed. We think the evidence afforded an inference of the correctness of these theories. At the same time, the defendant’s resistance on the trial was, and is here, that in good faith he was, with knowledge on the part of the deceased that he was a policeman, attempting to arrest the deceased and have him make bond for an offense or offenses in violation of the. ordinances of the town committed in his presence. If the. defendant was in good faith attempting to arrest the deceased, and if deceased was armed with a pistol and at the time of the attempted arrest he manifested an intention to resist the arrest, and committed an overt act which manifested an intent to immediately use the pistol under such circumstances as were sufficient to create in the mind of a reasonable man, and if they did create in the mind of the defendant an honest belief that the deceased was going to draw the weapon and immediately fire on him in resistance of arrest, then the defendant was justified in firing first. — U. S. v. Rice, 27 Fed. Cas. 795, No. 16,153; Adams’ Case, 72 Ga. 85; Boykin’s Case, 22 Colo. 496, 45 Pac. 419; Morton v. Bradley, 30 Ala. 683.
Upon consideration of the evidence we think, and hold, that there was some evidence which tends to support the defendant’s theory, its weight, of course, was a question for the determinhtion of the jury. Upon these considerations we hold that the court erred in declining to' allow evidence of threats made by the deceased against the defendant and in declining to* allow evidence tending to show that the deceased was a turbu[89]*89lent dangerous and bloodthirsty character. — Green’s Case, 69 Ala. 6; Robert’s Case, 68 Ala. 156; Meyers’ Case, 62 Ala. 599; Burns’ Case, 49 Ala. 370; Jones’ Case, 116 Ala. 468, 23 South. 135; Gafford’s Case, 122 Ala. 54, 25 South. 10; Storey’s Case, 71 Ala. 329.
It was within the ir mi sable discretion of the court to allow the solicitor to recall witnesses for the defendant for the purpose of laying a predicate for their impeachment by proof of contradictory statements; and by calling them the state did not, as is insisted by the appellant, make them its witnesses. — Jones’ Case, 115 Ala. 67, 22 South. 566; Dudley’s Case, 121 Ala. 4, 25 South. 742; Thomas’ Case, 100 Ala. 53, 14 South. 621; Thompson's Case, 100 Ala. 70; 14 South. 878; Braham’s Case, (Ala.) 38 South. 919.
If a witness answers a question, and the answer is responsive, the party asking the question has no right to have the answer excluded. To acknowledge such right would be allowing the party to experiment. • — Toliver's Case, 94 Ala. 111, 10 South. 428. In allowing Bart Tucker to- testify that Holley testified that, “if said Tucker had exchanged pistols at his restaurant, he (Holley) Avould haAre seen it,” the court erred. Such evidence was a mere conclusion of the Avitness Holley.— Reeves’ Case, 96 Ala. 33, 11 South. 296; E. T., V. & G. R. R. Co. v. Watson, 90 Ala. 41, 7 South. 813; Ferguson’s Case, 134 Ala. 03, 32 South. 760.
In this case 100 written charges were requested by the defendant. Careful consideration of the case will reveal to any reasonable man an entire lack of necessity for this number of charges being flooded on the presiding judge and on this court for review. Every proposition in the case, we do not hesitate to say, could have been presented and covered by a dozen Avritten charges. Then AArhy so many Avritten requests? Thirty-six of the 100 charges requested were giAren and 64 Avere refused.' We shall not criticise the refused charges in detail. To do so Avould be both unprofitable and a useless consumption of time. Of the refused charges, those numbered 55, 58 and 64 assert correct proposi[90]*90tions and should have been given. They fall within the exception to the rule against giving undue prominence to particular parts of the evidence and the rule that charges should not be argumentative. — Hale’s Case, 122 Ala. 85, 26 South. 236; Perry’s Case, 78 Ala. 22; Smith’s Case, 88 Ala. 73, 7 South. 52; Roberts’ Case, 122 Ala. 47, 25 South. 238.
As has been intimated in a previous paragraph in this opinion, there is a tendency of the evidence to the effect that the defendant approached the deceased under the guise of making an arrest and killed-him for the purpose of wreaking vengeance on him; in other words, that the insistance that the defendant approached the deceased for the purpose of making a legal arrest is an afterthought — a mere pretense. In the light of the tendency of the evidence, those charges refused to the defendant which sought to invoke the doctrine of freedom from fault, of which No. 39 is an example, are had. If for no other reason, they fail to hypothesize good faith on the part of the defendant in carrying the gun. Certainly, if the defendant was approaching the deceased, not having a purpose in good faith to arrest the deceased, but for the purpose of engaging in a difficulty with him, he was not without fault. — Reese’s Case, 135 Ala. 13, 33 South. 672; Neeley’s Case, 20 Iowa, 108; Benham’s Case, 23 Iowa, 154, 92 Am. Dec. 416. All other refused charges were properly refused. Some of them if not inherently bad, were substantially duplicates of charges which the record shows were given for the defendant, while the others "were vicious in one or more particulars.
In giving charge A for the state the court committed no error. — Wilkin’s Case, 98 Ala. 6, 13 South. 312; Norris’s Case, 87 Ala. 85, 6 South. 371; Smith’s Case, 118 Ala. 117, 24 South. 55.
The oral charge of the court is not set out. Therefore we are not in position to determine the correctness or not of charge B, given at the request of the state; but, in the present state of the record we will presume in favor of the court, that the charges given for the defendant were not in conflict with the oral charge.
[91]*91Charge C, given 'for the state, was calculated to mislead and confuse the jury, and, while it is the better practice to refuse such charges, yet the giving of the charge does not constitute reversible error. — Caddell's Case, 136 Ala. 9, 34 South. 191, and cases there cited.
It has been strenuously urged by counsel for the appellant that the record proper fails to show the presence of the defendant when the verdict of the jury was received. While, on account of reversible errors found in the record, it is not necessary for us to determine th is question, we suggest that it is just as easy for the clerk to make the record show by direct recitals the presence of the defendant during the entire trial as it is to leave such important features to rest in inference, and more care should be taken in this respect by those who write and supervise minute entries.
For the errors pointed out, the judgment appealed from is reversed, and the cause remanded.
Weakley, O. J., and I-Iaralson and Dowdell, JJ., concur.