MANNING, J.
By § 4063 of the Revised. Code, it is made the duty of the sheriff, judge of probate, and clerk of the circuit court in each county, bi-ennially, to make a list of the names of “such persons as, in their opinion, are competent to discharge the duties of grand and petit jurors, with honesty, impartiality and intelligence, and are esteemed in the community for their integrity, fair character and sound judgment; but no person is to be selected who is under twenty-one years of age, or over sixty, years of age, or who is a habitual drunkard, or who is afflicted with a permanent disease.”
Section 4087 oí the Revised Code was as follows: “It is the duty of the court before charging the grand jury, to ascertain whether the jurors possess the requisite qualifications ; and no challenge to the array of the grand jury can be interposed by any person.” An act to amend this section, approved March 15th, 1875, repeals it and enacts the following substitute : “It is the duty of the court, before administering the oath prescribed by law, to any grand, petit, or tales juror, to ascertain that such juror possesses the qualifications required by § 4063 of the Revised Code, and the duty required of the court by this act shall be considered imperative.”
The record made of the organization of the grand jury, which found the indictment in this cause, did not show affirmatively that the court made any inquiry, or thought it necessary to make any inquiry in regard to the qualifications ■of the members of that body, and the defendant, therefore, filed two pleas in abatement alleging that the court did not, before the jurors were sworn, ascertain that they were competent to discharge their duties as such with honesty, impartiality, and intelligence, &c., and were not under twenty-one years of age, or over sixty years of age, or habitual drunkards, or afflicted with a permanent disease; and offering to verify these allegations by the record.
The pleas did not designate any of said grand jurors as, or aver that any of them were, incompetent, according to section 4063, or should have been excluded by virtue of its provisions.
The State interposed a demurrer to these pleas, on the ground that they were no answer to the indictment; and the [385]*385ruling of the court sustaining the demurrer is assigned as error.
To the objection that the demurrer should have been overruled because it did not sufficiently specify the particulars in which the pleas were insufficient — we answer: although the court might for that cause have refused to examine the pleas for defects therein, and have properly overruled the demurrer ; yet, if the pleas are manifestly insufficient, and no answer to the indictment, and the court properly so decided, we will not reverse its judgment sustaining the demurrer. Whitten v. Graves, 40 Ala. 578.
The question then is, were the pleas defective ? . It is insisted that as under the statute of March 15th, 1875, the duty of ascertaining that jurors possessed the qualifications of intelligence, integrity, &c., was made imperative on the judge, the record should show that it was performed. The section, 4087, before it was amended, made it “the duty of the court, before charging the grand jury, to ascertain whether the jurors possessed the requisite qualifications, ” which were previously prescribed; and a duty required by law to be performed, is imperative, whether declared to be so or not. But it has never before been thought necessary that the record should recite that the court did perform the duty of ascertaining whether the grand jurors it empaneled and charged,, were qualified or net. That is necessarily implied by- the fact that it accepted them as qualified. The judge might have been acquainted with each individual juror, and so have been able to determine the fact of his fitness, without making any inquiry. Besides, his judgment in regard to ,the honesty, impartiality, and intelligence of the jurors must necessarily be conclusive, not to be reviewed and overruled in an appellate court.
Moreover, section 4187 provides that “no objection can be taken to an indictment by plea in abatement, or otherwise, on the ground that any member of the grand jury was not legally qualified, or that the grand jurors were not legally drawn or summoned, or on any other ground going to the formation hi the grand jury, except that jurors were not drawn in the presence of the officers designated by law.” This section has not been repealed. And the object of the act of March, 1875, appears to have been to authorize and enjoin upon the court to see to it that not only in the composition of the grand jury, but also of the petit jurors (a dangerous power if the judge be corrupt), only those should be empaneled whom he considered qualified according to the laws.
[386]*386There was no error in sustaining the demurrer to the pleas in abatement.
The objection that the record does not show that a copy of the indictment, and of the list of jurors summoned for the trial, was not duly served on defendant, is a mistake of fact. The sheriff's return in the record shows that this duty was performed.
In selecting jurors for the trial of the cause, the court caused eight questions to be put to each person of the fifty-summoned, that was present when his name was called, and from the whole number obtained only nine who were sworn. And then while the sheriff was employed in summoning a number of other persons from whom to choose the three necessary to complete the panel, the nine already sworn were permitted, by the court, without the expxmss consent of defendant, but also without objection on his part, to retire from the jury bench and remain out of the coux’t house, dispersed among the people there, for the space of an hour; at the end of which, and from persons summoned in the meantime, by the sheriff, the jixxw was completed, with three others to whom also the eight questions refex’red to were put and answered. None of these questions inquired of the jurors, in respect to their honesty or intelligence, or their imputation among their neighbors, or their age, or whether they were afflicted with any permanent disease. Nor did defendant ask or i-equest the court to ask any questions touching these matters of themselves or anybody else. With the first nine jurors he expressed himself satisfied as they were put upon him ; and his peremptory challenges being exhausted, he expressed no dissatisfaction with, or approbation of, the other three. But after they were sworn in, he objected to all and each of the juror's, because the first nine had gone out among the people, after they were sworn; and second, because none of the twelve had been interrogated as to their qualifications, under section 4063, and no inquiries were at that time made of others, on that subject.
The defendant made no objection to the permission of the court to the nine jurors to go out- of the court house, while the sheriff should summon other persons from whom to complete the jury, either when they were permitted to disperse,or when they first came back, but proceeded to tbe selection of the other three jurors, and after they were sworn, made his objection to all and each. If he had any objection to the temporary dispersion of the nine jurors he should have made it known before they went out, or at any rate, before he proceeded to tbe completion of the jury with the talesmen, [387]*387See Robbins v. The State, 49 Ala. 394; Williams v. The State, 45 Ala. 57.
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MANNING, J.
By § 4063 of the Revised. Code, it is made the duty of the sheriff, judge of probate, and clerk of the circuit court in each county, bi-ennially, to make a list of the names of “such persons as, in their opinion, are competent to discharge the duties of grand and petit jurors, with honesty, impartiality and intelligence, and are esteemed in the community for their integrity, fair character and sound judgment; but no person is to be selected who is under twenty-one years of age, or over sixty, years of age, or who is a habitual drunkard, or who is afflicted with a permanent disease.”
Section 4087 oí the Revised Code was as follows: “It is the duty of the court before charging the grand jury, to ascertain whether the jurors possess the requisite qualifications ; and no challenge to the array of the grand jury can be interposed by any person.” An act to amend this section, approved March 15th, 1875, repeals it and enacts the following substitute : “It is the duty of the court, before administering the oath prescribed by law, to any grand, petit, or tales juror, to ascertain that such juror possesses the qualifications required by § 4063 of the Revised Code, and the duty required of the court by this act shall be considered imperative.”
The record made of the organization of the grand jury, which found the indictment in this cause, did not show affirmatively that the court made any inquiry, or thought it necessary to make any inquiry in regard to the qualifications ■of the members of that body, and the defendant, therefore, filed two pleas in abatement alleging that the court did not, before the jurors were sworn, ascertain that they were competent to discharge their duties as such with honesty, impartiality, and intelligence, &c., and were not under twenty-one years of age, or over sixty years of age, or habitual drunkards, or afflicted with a permanent disease; and offering to verify these allegations by the record.
The pleas did not designate any of said grand jurors as, or aver that any of them were, incompetent, according to section 4063, or should have been excluded by virtue of its provisions.
The State interposed a demurrer to these pleas, on the ground that they were no answer to the indictment; and the [385]*385ruling of the court sustaining the demurrer is assigned as error.
To the objection that the demurrer should have been overruled because it did not sufficiently specify the particulars in which the pleas were insufficient — we answer: although the court might for that cause have refused to examine the pleas for defects therein, and have properly overruled the demurrer ; yet, if the pleas are manifestly insufficient, and no answer to the indictment, and the court properly so decided, we will not reverse its judgment sustaining the demurrer. Whitten v. Graves, 40 Ala. 578.
The question then is, were the pleas defective ? . It is insisted that as under the statute of March 15th, 1875, the duty of ascertaining that jurors possessed the qualifications of intelligence, integrity, &c., was made imperative on the judge, the record should show that it was performed. The section, 4087, before it was amended, made it “the duty of the court, before charging the grand jury, to ascertain whether the jurors possessed the requisite qualifications, ” which were previously prescribed; and a duty required by law to be performed, is imperative, whether declared to be so or not. But it has never before been thought necessary that the record should recite that the court did perform the duty of ascertaining whether the grand jurors it empaneled and charged,, were qualified or net. That is necessarily implied by- the fact that it accepted them as qualified. The judge might have been acquainted with each individual juror, and so have been able to determine the fact of his fitness, without making any inquiry. Besides, his judgment in regard to ,the honesty, impartiality, and intelligence of the jurors must necessarily be conclusive, not to be reviewed and overruled in an appellate court.
Moreover, section 4187 provides that “no objection can be taken to an indictment by plea in abatement, or otherwise, on the ground that any member of the grand jury was not legally qualified, or that the grand jurors were not legally drawn or summoned, or on any other ground going to the formation hi the grand jury, except that jurors were not drawn in the presence of the officers designated by law.” This section has not been repealed. And the object of the act of March, 1875, appears to have been to authorize and enjoin upon the court to see to it that not only in the composition of the grand jury, but also of the petit jurors (a dangerous power if the judge be corrupt), only those should be empaneled whom he considered qualified according to the laws.
[386]*386There was no error in sustaining the demurrer to the pleas in abatement.
The objection that the record does not show that a copy of the indictment, and of the list of jurors summoned for the trial, was not duly served on defendant, is a mistake of fact. The sheriff's return in the record shows that this duty was performed.
In selecting jurors for the trial of the cause, the court caused eight questions to be put to each person of the fifty-summoned, that was present when his name was called, and from the whole number obtained only nine who were sworn. And then while the sheriff was employed in summoning a number of other persons from whom to choose the three necessary to complete the panel, the nine already sworn were permitted, by the court, without the expxmss consent of defendant, but also without objection on his part, to retire from the jury bench and remain out of the coux’t house, dispersed among the people there, for the space of an hour; at the end of which, and from persons summoned in the meantime, by the sheriff, the jixxw was completed, with three others to whom also the eight questions refex’red to were put and answered. None of these questions inquired of the jurors, in respect to their honesty or intelligence, or their imputation among their neighbors, or their age, or whether they were afflicted with any permanent disease. Nor did defendant ask or i-equest the court to ask any questions touching these matters of themselves or anybody else. With the first nine jurors he expressed himself satisfied as they were put upon him ; and his peremptory challenges being exhausted, he expressed no dissatisfaction with, or approbation of, the other three. But after they were sworn in, he objected to all and each of the juror's, because the first nine had gone out among the people, after they were sworn; and second, because none of the twelve had been interrogated as to their qualifications, under section 4063, and no inquiries were at that time made of others, on that subject.
The defendant made no objection to the permission of the court to the nine jurors to go out- of the court house, while the sheriff should summon other persons from whom to complete the jury, either when they were permitted to disperse,or when they first came back, but proceeded to tbe selection of the other three jurors, and after they were sworn, made his objection to all and each. If he had any objection to the temporary dispersion of the nine jurors he should have made it known before they went out, or at any rate, before he proceeded to tbe completion of the jury with the talesmen, [387]*387See Robbins v. The State, 49 Ala. 394; Williams v. The State, 45 Ala. 57.
The reasoning above shows that, in our opinion, there was no error which this court can notice, in the omission to ask the jurors other questions than the eight contained in the record, or making other inquiries in respect to their qualifications. Besides that the judge may have personally known the jurors and so have ascertained their fitness, or may have ascertained it to his satisfaction by means of their answers to his questions, and their known reputation for integrity and intelligence, his judgment in respect to such qualifications could not be reviewed in this court. Defendant has not indicated any juror as incompetent in any respect; nor did he propound, or ask to have propounded, to any of them, or to any other person, any question touching or implying a doubt of tlicir competency before the jury w&h complete, and each member of it sworn. Guice v. The State (in MS.) January T. 1874; Joe Brown v. The State, 52 Ala. 352.
The articles taken by defendant from witness at the time of the supposed robbery, were a sack of flour and a jug of whisky; which witness testified he “had purchased” in Selma, This was evidence of their value. The court and jury would take notice, if necessary, that such articles had a value when the prosecution was for feloniously taking them by violence from the owner of them. Roscoe (Evidence in Crim. Cases, 908) says: “It must be proved that some property was taken, .... but the value of the property is immaterial. A penny, as well as a pound, forcibly extorted constitutes a robbery, the gist of the offence being the force and terror. Thus, when a man was knocked down, and his pockets rifled, but the .robbers found nothing but a slip of paper containing a memorandum, an indictment for robbing him of the paper was held to be maintainable.” There was property in the goods taken, shown to be in the witness; and the charge of the court was not erroneous in respect to the question of value.
The testimony shows that the defendant and witness, Hardy, were traveling together, along the same róad, and that the articles taken, contained in a bag, were handed by witness to defendant to be carried for witness. They were walking along together, continued to do so for about three-fourths of a mile, and had gotten out of the road into a field, when defendant, “who was then walking by witness’ side, and carrying said things for him, took a step backwards, and struck witness behind on his neck, knocking him down and insensible. This was after dark, and no other persons were [388]*388near or in sight; ” and when witness recovered consciousness, defendant was gone and also the sack of flour and jug of whisky.
Up to the time of the blow, there was no appropriation of these articles by defendant, or denial of the property of witness in them. They were in the presence, and constructively in the possession of witness. Defendant may have well supposed that he could not get away with them, they being heavy, without first knocking down and disabling their owner. And although they were in the hands of defendant, carried by him at the request of the owner, they were not taken from him, he being constructively in possession, and they being in his presence as his property, until he was stricken by defendant and knocked down. The violence was not done after the goods were taken away, but they were taken away after and by means of the violence to the person of the owner. The. court's charge was in this particular according to law, and there was no error in refusing the charges asked in regard to this point.
The Revised Code provides (§ 3668) that any person convicted of robbery shall be punished, at the discretion of the jury, by death, or imprisonment in the penitentiary not less than ten years, or by hard labor for the county not less than ten years. The court charged the jury that if they found the prisoner guilty, it was discretionary with them to determine whether he should be punished by death or by imprisonment in the penitentiary, not less than ten years, and after prescribing the form of the verdict in the former case, added: “if you find the defendant guilty, but do not see fit to inflict death upon him as the punishment for this offense, you will say — “we the jury find the defendant guilty as charged in the indictment, and that he be imprisoned in the penitentiary for a term not less than ten years." And this was excepted to by the defendant.
Nothing was said in any instruction of the court, set forth in the bill of exceptions, of the authority of the jury to punish, by hard labor for the county, for a term not less than ten years; and the verdict was that he be sent to the penitentiary for that period. The court erred in so instructing the jury as to restrict them from deciding that defendant should be punished otherwise than capitally or by imprisonment in the penitentiary. And for this error the judgment must be reversed and the cause remanded.
But appellant must remain in custody until discharged by due course of law.