TYSON, J.
The statement of the juror Fincher under oath, that he would try the case entirely upon the evidence clearly made him competent. — Long v. The State, 86 Ala. 36.
It must be admitted there is a slight degree of uncertainty shewn by the examination of the juror, Cook, as to whether he had a fixed opinion that would bias his verdict. The question presented was one for the determination of the trial court, and was one of mixed law and fact to be tried as far as’ the facts are concerned, like any other issue of that character, upon the evidence. “The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error i's manifest. * * It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law- be deemed impartial. * In considering such questions in a reviewing court, we ought not to be unmindful of the fact Ave have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot ahvays be spread upon the record. Care should, therefore, be taken in the revieAving court not to reverse the ruling below upon such a question of fact, except in a clear case. The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror a« will raise the presumption of partiality, the jhror need not [36]*36ncessarily be set aside and it will not be error in the court to do so.” — Reynolds v. U. S. 98 U. S. 156. This principle is stated by our own court in this language: “The sufficiency of the cause of challenge is determined by the trial court, and the inquiries are addressed to the conscience of the juror under oath. 'He is examined touching his qualifications, in the presence of the judge, who sees his manner of answering the questions, and the probing of his conscience, which is oftentimes more clearly indicative of his disinterestedness or bias, than the mere words used. The reviewing; court, therefore, should' exercise caution, and the finding of the trial court should not be set aside/, unless it affirmatively appears, that, on the answers of the juror taken as a ivhole, he entertained a fixed opinion which would bias his verdict.” — Long v. The State, supra. Bee also 1 Thompson on Trials, $ 118, p. 126 and note 5. Applying these principles, we are constrained to hold that Cook’s incompetency is not shown by the record.
While it is doubtless true, that the rule prevailing in this State is, that, before challenge, neither party has a right to interrogate a juror, to ascertain whether he is subject to challenge, (Bales v. The State, 63 Ala. 30; Hawes v. The State, 88 Ala. 66;Lundy v. The State, 91 Ala. 100 ;Hornsby v. The State, 94 Ala. 55), vet, the court, in the exercise of its discretion, may permit it to be done and when allowed is not revi sable. — Mann v. The State, 134 Ala. 1; State v. Lautenschlager, 22 Minn. 514; 1 Thompson on Trials, § 101, p. 100. The action of the court in allowing the solicitor to interrogate jurors Rabby and McMillan as to their relation, either bv blood or by marriage, with the defendant, and in permitting the solicitor to ask juror Curtis Bush “Are you opposed to capital punishment in a case of murder,” is not revisable. And we might say, with all propriety, that the action of the court was entirely proper.
The court committed no error in refusing to send for the juror who was engaged in the trial of another case. Prater v. The State, 107 Ala. 26.
Pringile was properly excused from serving as a juror. King v. The State, 90 Ala. 612.
[37]*37It is of no consequence that the diagram introduced in evidence was made by the solicitor, if correct. Nor is it of consequence, that its correctness was not shown prior to its admission in evidence, if it was subsequently proved, as was done by the defendant’s testimony.— Wilkinson v. The State, 106 Ala, 23; Burton v. The State, 115 Ala. 9.
The source from which the defendant acquired his knowledge of the debauch of the girl and by whom was utterly immaterial. Besides, it was an uncontroverted fact in the case that he possessed this information before going to see the deceased. It may, therefore, properly be said, if it be conceded that the proposed testimony was competent, its exclusion was harmless. •
The testimony of Miss Dana, excluded by the court, was clearly illegal. When “an illegal question is propounded and there is no objection to it and the answer is responsive, the party against whom it is offered is not entitled to have the answer excluded. * * But on the other hand, the court commits no error in allowing a motion to exclude, or in excluding such illegal evidence of its own motion, at any time before the jury retires.”— Liner v. The State, 124 Ala. 1, 6; Vaughan v. The State, 130 Ala. 18.
To sustain the action of the court in allowing the prosecution to introduce the testimony of witness Free-land we need only to cite Lewis v. The State, 88 Ala. 11.
The exercise by the court of its discretion in allowing witniess, Kirkbride, to testify, although he, with other witnesses were placed under the rule, but had violate it, is not revisable. — Hall v. The State, 137 Ala. 44.
In our opinion a sufficient predicate is shown to admit the dying: declaration of the deceased in evidence. Nor is therejinv merit i.n the objection to the oral proof of those declarations notwithstanding they had been reduced to writing by a person other than deceased, and read over to him, hut not signed by him, and although the writing is not produced. “This is not a case., like that of a contract, in which oral evidence is inadmissible, because there was a writing, setting forth, the agreement, of the parties.” — Kelly v. The State, 52 Ala. 361, 368; Anderson v. The State, 79 Ala. 5; Darby v. The State, 92 Ala. 9.
[38]*38During the examination of the witness Kirkbride,. the solicitor asked him a question which he answered, the defendant then interposed a general objection, whether to the question or answer is not shown. The objection came too late. — Downey v. The State, 115 Ala. 108.
The court having properly excluded all evidence of a promise of marriage, the argument of defendant’s counsel was improper and the court acted correctly in stopping him.
There is no merit in the first exception reserved to the oral charge of the court. — Stillwell v. The State, 107 Ala. 21; McNeill v. The State, 102 Ala. 121; Keiser v. Smith, 71 Ala. 481; Felix v. The State, 18 Ala. 720. We have not overlooked the case of Hooks v. The State, 99 Ala. 166, relied upon by appellant’s counsel, where it is said in a dictum that cooling time is a question of fact for the jury. This is opposed to the cases cited above, and was in effect overruled in McNeill’s case, supra. We must decline to follow it.
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TYSON, J.
The statement of the juror Fincher under oath, that he would try the case entirely upon the evidence clearly made him competent. — Long v. The State, 86 Ala. 36.
It must be admitted there is a slight degree of uncertainty shewn by the examination of the juror, Cook, as to whether he had a fixed opinion that would bias his verdict. The question presented was one for the determination of the trial court, and was one of mixed law and fact to be tried as far as’ the facts are concerned, like any other issue of that character, upon the evidence. “The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error i's manifest. * * It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law- be deemed impartial. * In considering such questions in a reviewing court, we ought not to be unmindful of the fact Ave have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot ahvays be spread upon the record. Care should, therefore, be taken in the revieAving court not to reverse the ruling below upon such a question of fact, except in a clear case. The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror a« will raise the presumption of partiality, the jhror need not [36]*36ncessarily be set aside and it will not be error in the court to do so.” — Reynolds v. U. S. 98 U. S. 156. This principle is stated by our own court in this language: “The sufficiency of the cause of challenge is determined by the trial court, and the inquiries are addressed to the conscience of the juror under oath. 'He is examined touching his qualifications, in the presence of the judge, who sees his manner of answering the questions, and the probing of his conscience, which is oftentimes more clearly indicative of his disinterestedness or bias, than the mere words used. The reviewing; court, therefore, should' exercise caution, and the finding of the trial court should not be set aside/, unless it affirmatively appears, that, on the answers of the juror taken as a ivhole, he entertained a fixed opinion which would bias his verdict.” — Long v. The State, supra. Bee also 1 Thompson on Trials, $ 118, p. 126 and note 5. Applying these principles, we are constrained to hold that Cook’s incompetency is not shown by the record.
While it is doubtless true, that the rule prevailing in this State is, that, before challenge, neither party has a right to interrogate a juror, to ascertain whether he is subject to challenge, (Bales v. The State, 63 Ala. 30; Hawes v. The State, 88 Ala. 66;Lundy v. The State, 91 Ala. 100 ;Hornsby v. The State, 94 Ala. 55), vet, the court, in the exercise of its discretion, may permit it to be done and when allowed is not revi sable. — Mann v. The State, 134 Ala. 1; State v. Lautenschlager, 22 Minn. 514; 1 Thompson on Trials, § 101, p. 100. The action of the court in allowing the solicitor to interrogate jurors Rabby and McMillan as to their relation, either bv blood or by marriage, with the defendant, and in permitting the solicitor to ask juror Curtis Bush “Are you opposed to capital punishment in a case of murder,” is not revisable. And we might say, with all propriety, that the action of the court was entirely proper.
The court committed no error in refusing to send for the juror who was engaged in the trial of another case. Prater v. The State, 107 Ala. 26.
Pringile was properly excused from serving as a juror. King v. The State, 90 Ala. 612.
[37]*37It is of no consequence that the diagram introduced in evidence was made by the solicitor, if correct. Nor is it of consequence, that its correctness was not shown prior to its admission in evidence, if it was subsequently proved, as was done by the defendant’s testimony.— Wilkinson v. The State, 106 Ala, 23; Burton v. The State, 115 Ala. 9.
The source from which the defendant acquired his knowledge of the debauch of the girl and by whom was utterly immaterial. Besides, it was an uncontroverted fact in the case that he possessed this information before going to see the deceased. It may, therefore, properly be said, if it be conceded that the proposed testimony was competent, its exclusion was harmless. •
The testimony of Miss Dana, excluded by the court, was clearly illegal. When “an illegal question is propounded and there is no objection to it and the answer is responsive, the party against whom it is offered is not entitled to have the answer excluded. * * But on the other hand, the court commits no error in allowing a motion to exclude, or in excluding such illegal evidence of its own motion, at any time before the jury retires.”— Liner v. The State, 124 Ala. 1, 6; Vaughan v. The State, 130 Ala. 18.
To sustain the action of the court in allowing the prosecution to introduce the testimony of witness Free-land we need only to cite Lewis v. The State, 88 Ala. 11.
The exercise by the court of its discretion in allowing witniess, Kirkbride, to testify, although he, with other witnesses were placed under the rule, but had violate it, is not revisable. — Hall v. The State, 137 Ala. 44.
In our opinion a sufficient predicate is shown to admit the dying: declaration of the deceased in evidence. Nor is therejinv merit i.n the objection to the oral proof of those declarations notwithstanding they had been reduced to writing by a person other than deceased, and read over to him, hut not signed by him, and although the writing is not produced. “This is not a case., like that of a contract, in which oral evidence is inadmissible, because there was a writing, setting forth, the agreement, of the parties.” — Kelly v. The State, 52 Ala. 361, 368; Anderson v. The State, 79 Ala. 5; Darby v. The State, 92 Ala. 9.
[38]*38During the examination of the witness Kirkbride,. the solicitor asked him a question which he answered, the defendant then interposed a general objection, whether to the question or answer is not shown. The objection came too late. — Downey v. The State, 115 Ala. 108.
The court having properly excluded all evidence of a promise of marriage, the argument of defendant’s counsel was improper and the court acted correctly in stopping him.
There is no merit in the first exception reserved to the oral charge of the court. — Stillwell v. The State, 107 Ala. 21; McNeill v. The State, 102 Ala. 121; Keiser v. Smith, 71 Ala. 481; Felix v. The State, 18 Ala. 720. We have not overlooked the case of Hooks v. The State, 99 Ala. 166, relied upon by appellant’s counsel, where it is said in a dictum that cooling time is a question of fact for the jury. This is opposed to the cases cited above, and was in effect overruled in McNeill’s case, supra. We must decline to follow it.
The second portion of the oral charge to- which an exception was taken, if faulty, was too favorable to-defendant.
Each of the charges given at the request of the solicitor asserted correct propositions of law and were properly given.
Charge 1 refused to defendant ignores all question of freedom from fault. — Crawford v. The State, 112 Ala. 1; Mayfield’s Dig. p. 807, § 8.
Charge 2 -was condemned as being argumentative in Amos v. The State, 123 Ala. 50.
Charge 3 was declared to be bad in Eggleston v. The State, 129 Ala. 80.
Charges 4, 5 and 6 pretermit all consideration by the jury of the whole evidence. — Murphy v. The State, 108 Ala. 10; Smith v. The State, 136 Ala. 1. It is true to sustain a conviction all the elements of the crime charged must be proved beyond a reasonable doubt; and a reasonable doubt as to a material fact essential to the-defendant’s guilt will enure to his benefit and entitle him to an acquittal But the fact must be material or a reasonable doubt as to it will not'warrant an acquittal.
[39]*39Charge 7 was properly refused. — Bondurant v. The State, 125 Ala. 31; Compton v. The State, 110 Ala. 24.
Charge 8 was, without more, faulty in. omitting the word “reasonable” before the word “hypothesis.”
Charge 9 should not have been given. Taking into consideration that phase of the tendency of the evidence that defendant killed the deceased solely on account of his refusal to marry the girl or because of his statement to defendant that he had impregnated the girl with child or on account of deceased’s statement to others to that effect, if believed by the jury, his offense could not have been of less degree than murder.
Charge 10 need not be considered. It had reference to murder in the first degree. The conviction of defendant of murder in the second degree operated as an acquittal of murder in the first degree. The refusal of the charge, if error, was harmless. — Winter v. The State, 123 Ala. 1, 10; Evans v. The State, 109 Ala. 11; Fallin v. The State, 83 Ala. 5.
There is no error in the record and the judgment must be affirmed.