COLEMAN, J.
— It is argued that the court at which the defendant was tried, was held at a time not authorized by law. The court began on the 2d Monday of July, 1891. The act fixing the time when the courts composing the 9th Judicial Circuit should be held declares as follows : (1.) In the county of Cherokee, on the second Monday in January and July, and at each term may continue three weeks. After fixing the time for each county, the act provides, “that this act shall not take effect untj.1 after the Spring terms of said courts are held for the year 1891.” — Approved Feb. 14th, 1891. When this act was approved, the courts were then being held in the 9th Judicial Circuit, under the law in force as fixed by the Code; and by virtue of its provisions the last court held in this circuit began on the ninth Monday after the fourth Monday in January and July, and might continue for four weeks. — Code, § 749. _ The last court to be held in this circuit, under the law as fixed by the Code, and then in force, would expire in April, following the adoption of the act of Feb. 14th, 1891. It was the purpose of the legislature that these-terms should not be interfered with, or affected by the new order or arrangements, and to accomplish this result it was provided that the later act should not take effect, until after those terms had been completed. We think there is nothing in this objection.
Under section 4449 of the Code, it is sufficient to serve a copy of the indictment and venire upon the defendant in person, or counsel appearing for him. — Reese v. State, 90 Ala. 626.
The name of Jno. A- Kennedy was drawn from the hat as a juror in the case. The record shows that Jno. A. Kennedy had been summoned as a regular juror for the week, but did not attend, and the regular jury had been impannelled without him. His name was on the venire, a copy of which had been served upon the defendant’s counsel. - The rule requires that, when the day fixed for the trial of one charged with a capital offense is a day of the week in which the order setting a day [40]*40for the trial is made, the copy served upon the defendant shall include the names .of those in attendance and impannelled as regular jurors for the week, but, when the day fixed for the trial' is a day of a week succeeding the week in which the order is made, the list of jurors to be served upon the defendant must include the names of the jurors summoned to serve as regular jurors for that week. — Shelton v. State, 73 Ala. 5 ; Posey v. State, Ib. 490; Floyd v. State, 55 Ala. 61. The juror Kennedy failing to answer, the court, against the objection of the defendant, ordered the drawing from the hat to proceed. The defendant at the trial assigned no grounds for. the objection, and now insists that the court should have or dered another juror summoned to supply his place. The case is not. covered by section 4322 of the Code, where this course is prescribed by statute. There was no mistake in the name of the juror, Jno. A. Kennedy. It was simply the case of a juror who had been summoned and failed to attend. The principle applying here was decided in Hall v. State, 51 Ala. 13. In the latter case, a juror failing to answer to his name when drawn, the court ordered another name to be drawn, and it was held to be without error. See, also Johnson v. State, 47 Ala. 34. The reasons for the rule are there stated.
There is nothing in the objection that the name W. E. Roberts appeared in the list served upon defendant’s counsel,, when the .correct name was W. L. Roberts. It was the duty of the trial court to examine the original and copy, and determine whether the copy was correct. That was done in the present case. The record shows that the copy' served contained the name of W. .L. Roberts, and from an inspection of the original, sent up to this court, but which was unnecessary, our conclusion concides with the trial court.
When a person is charged with having unlawfully killed his-wife, it is permissible to prove unlawful relations with another woman. It is evidence tending to show motive. It is not permissible for a defendant to make evidence for himself by showing that he offered to surrender to the sheriff, or refused to flee. On these propositions, see Pate v. State, ante, p. 14, and authorities cited.
It is not proper to ask one witness,- if another witness, who had testified as to certain language used by the defendant, was not mistaken in his statement. The witness thus interrogated should give his recollection of the language used. It is the province of the jury to draw the conclusion in such cases.
We understand the remark of the court to which exception was reserved, as simply implying a doubt as to the correct[41]*41ness of counsel’s recollection, in the statement made as to the ruling of the Supreme Court. The court withdrew the remark, and we are unable to perceive how injury resulted, to defendant.
No predicate was laid for the introduction of the statement by the deceased as a dying declaration, and it was not shown how. long after the shooting before the declaration was made. Acts and declarations, to be admissible under the principle of res gestee, must be substantially contemporaneous with the main fact under consideration, and so closely connected with it as to illustrate its character. — Fonville v. State, 91 Ala. 42. The declarations were not admissible for any purpose.
Our statute divides manslaughter into two degrees, as follows : “Manslaughter by voluntarily depriving a human being of life, is manslaughter in the first degree; and manslaughter commuted under any other circumstance,is manslaughter in the second degree.” — Code, § 3731. Involuntary manslaughter lias been defined to be the unlawful killing of a human being, without malice, either expressed or implied, and without intent to kill or inflict the injury causing death, committed accidentally in the commission of some unlawful act not felonious, or in the improper or negligent, performance of an act lawful in itself. — 6 Amer. & Eng. Encyc., p. 588. If an act be done unlawful in itself, but without mischievous intention, and the act was done heedlessly and incautiously, it will be manslaughter, not accidental death, because the act which ensued was unlawful. — Roscoe’s Cr. Ev. § 721. Misadventure, says Blackslone, happens in consequence of a lawful act; involuntary manslaughter, in consequence of an unlawful act. 2 Bl. Com. § 192. A whips an horse on which B is riding; whereupon the horse springs out, and runs over a child and kills it; this is manslaughter in A, but misadventure in B. 1 East’s P. C. 255. Manslaughter in the second degree is when the homicide results from the commission of a misdemeanor, or civil tort, but which result was not intended or contemplated. — Mitchell v. State, 60 Ala. 33.
By act of the legislature, the pointing of a gun or pistol or other fire-arm at another, whether loaded or unloaded, is made ,an offense. — Acts of 1888-9, p. 67. There is evidence, that of the witness Wilson, which tended to show that the defendant was snapping his pistol at a child when it went off and killed deceased. The charge of the court upon this phase of the evidence was neither abstract nor erroneous. It was not necessary that the defendant should have intentionally pointed the pistol at the deceased, to constitute the offense. If he intentionally pointed it at the child, and while doing this un[42]
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COLEMAN, J.
— It is argued that the court at which the defendant was tried, was held at a time not authorized by law. The court began on the 2d Monday of July, 1891. The act fixing the time when the courts composing the 9th Judicial Circuit should be held declares as follows : (1.) In the county of Cherokee, on the second Monday in January and July, and at each term may continue three weeks. After fixing the time for each county, the act provides, “that this act shall not take effect untj.1 after the Spring terms of said courts are held for the year 1891.” — Approved Feb. 14th, 1891. When this act was approved, the courts were then being held in the 9th Judicial Circuit, under the law in force as fixed by the Code; and by virtue of its provisions the last court held in this circuit began on the ninth Monday after the fourth Monday in January and July, and might continue for four weeks. — Code, § 749. _ The last court to be held in this circuit, under the law as fixed by the Code, and then in force, would expire in April, following the adoption of the act of Feb. 14th, 1891. It was the purpose of the legislature that these-terms should not be interfered with, or affected by the new order or arrangements, and to accomplish this result it was provided that the later act should not take effect, until after those terms had been completed. We think there is nothing in this objection.
Under section 4449 of the Code, it is sufficient to serve a copy of the indictment and venire upon the defendant in person, or counsel appearing for him. — Reese v. State, 90 Ala. 626.
The name of Jno. A- Kennedy was drawn from the hat as a juror in the case. The record shows that Jno. A. Kennedy had been summoned as a regular juror for the week, but did not attend, and the regular jury had been impannelled without him. His name was on the venire, a copy of which had been served upon the defendant’s counsel. - The rule requires that, when the day fixed for the trial of one charged with a capital offense is a day of the week in which the order setting a day [40]*40for the trial is made, the copy served upon the defendant shall include the names .of those in attendance and impannelled as regular jurors for the week, but, when the day fixed for the trial' is a day of a week succeeding the week in which the order is made, the list of jurors to be served upon the defendant must include the names of the jurors summoned to serve as regular jurors for that week. — Shelton v. State, 73 Ala. 5 ; Posey v. State, Ib. 490; Floyd v. State, 55 Ala. 61. The juror Kennedy failing to answer, the court, against the objection of the defendant, ordered the drawing from the hat to proceed. The defendant at the trial assigned no grounds for. the objection, and now insists that the court should have or dered another juror summoned to supply his place. The case is not. covered by section 4322 of the Code, where this course is prescribed by statute. There was no mistake in the name of the juror, Jno. A. Kennedy. It was simply the case of a juror who had been summoned and failed to attend. The principle applying here was decided in Hall v. State, 51 Ala. 13. In the latter case, a juror failing to answer to his name when drawn, the court ordered another name to be drawn, and it was held to be without error. See, also Johnson v. State, 47 Ala. 34. The reasons for the rule are there stated.
There is nothing in the objection that the name W. E. Roberts appeared in the list served upon defendant’s counsel,, when the .correct name was W. L. Roberts. It was the duty of the trial court to examine the original and copy, and determine whether the copy was correct. That was done in the present case. The record shows that the copy' served contained the name of W. .L. Roberts, and from an inspection of the original, sent up to this court, but which was unnecessary, our conclusion concides with the trial court.
When a person is charged with having unlawfully killed his-wife, it is permissible to prove unlawful relations with another woman. It is evidence tending to show motive. It is not permissible for a defendant to make evidence for himself by showing that he offered to surrender to the sheriff, or refused to flee. On these propositions, see Pate v. State, ante, p. 14, and authorities cited.
It is not proper to ask one witness,- if another witness, who had testified as to certain language used by the defendant, was not mistaken in his statement. The witness thus interrogated should give his recollection of the language used. It is the province of the jury to draw the conclusion in such cases.
We understand the remark of the court to which exception was reserved, as simply implying a doubt as to the correct[41]*41ness of counsel’s recollection, in the statement made as to the ruling of the Supreme Court. The court withdrew the remark, and we are unable to perceive how injury resulted, to defendant.
No predicate was laid for the introduction of the statement by the deceased as a dying declaration, and it was not shown how. long after the shooting before the declaration was made. Acts and declarations, to be admissible under the principle of res gestee, must be substantially contemporaneous with the main fact under consideration, and so closely connected with it as to illustrate its character. — Fonville v. State, 91 Ala. 42. The declarations were not admissible for any purpose.
Our statute divides manslaughter into two degrees, as follows : “Manslaughter by voluntarily depriving a human being of life, is manslaughter in the first degree; and manslaughter commuted under any other circumstance,is manslaughter in the second degree.” — Code, § 3731. Involuntary manslaughter lias been defined to be the unlawful killing of a human being, without malice, either expressed or implied, and without intent to kill or inflict the injury causing death, committed accidentally in the commission of some unlawful act not felonious, or in the improper or negligent, performance of an act lawful in itself. — 6 Amer. & Eng. Encyc., p. 588. If an act be done unlawful in itself, but without mischievous intention, and the act was done heedlessly and incautiously, it will be manslaughter, not accidental death, because the act which ensued was unlawful. — Roscoe’s Cr. Ev. § 721. Misadventure, says Blackslone, happens in consequence of a lawful act; involuntary manslaughter, in consequence of an unlawful act. 2 Bl. Com. § 192. A whips an horse on which B is riding; whereupon the horse springs out, and runs over a child and kills it; this is manslaughter in A, but misadventure in B. 1 East’s P. C. 255. Manslaughter in the second degree is when the homicide results from the commission of a misdemeanor, or civil tort, but which result was not intended or contemplated. — Mitchell v. State, 60 Ala. 33.
By act of the legislature, the pointing of a gun or pistol or other fire-arm at another, whether loaded or unloaded, is made ,an offense. — Acts of 1888-9, p. 67. There is evidence, that of the witness Wilson, which tended to show that the defendant was snapping his pistol at a child when it went off and killed deceased. The charge of the court upon this phase of the evidence was neither abstract nor erroneous. It was not necessary that the defendant should have intentionally pointed the pistol at the deceased, to constitute the offense. If he intentionally pointed it at the child, and while doing this un[42]*42lawful act it went off and killed deceased, although he mayliave supposed it was not loaded, he was guilty at least of involuntary manslaughter. The killing was not a misadventure.
Good character may generate a doubt in cases where, without such proof, the jury would be satisfied beyond a reasonable doubt of the defendant’s guilt. Butthe jury are not authorized to consider the proof of good character, independent of the other evidence in the case. It is taken into consideration with all the evidence, weighed with it, and if upon the whole evidence the jury entertain no reasonable doubt of guilt, they must convict. The manner of expression used in the charge requested, was calculated to convey to the jury that they might consider the proof of good character by itself, or independent of the other evidence, and when separately considered, it might generate a doubt. We have but recently condemned a somewhat similar charge in the case of Pate v. State, present term, and is liable to the same objection as the charge criticised in Williams v. State, 52 Ala. 412.
We have examined the exceptions to the general charge of the court and each assignment of error, and find no reversible error in the record. The judgment of. the court, that the defendant perform hard labor for the county for a term of fifteen months, to pay the cost of the prosecution, was erroneous. Eight months is the limit in cases of misdemeanor, for which a person may be sentenced to pay cost.. The judgment will be here corrected in this respect, and as thus corrected is affirmed. — Bradley v. State, 69 Ala. 318.
Affirmed.