OLOPTON, J.
Garland, whose name appears on the special venire, having been drawn, claimed exemption from jury duty under section 174 of the Code; and after being sworn and examined, was excused and discharged, against the objection of defendant, upon his own statement, that he was a member of the Sheffield Light Guards, and belonged to the Alabama State troops. The section declares: “ Every officer, commissioned or non-commissioned, musician and private, of the Alabama State troops, is exempt from jury duty during his membership; and the commanding officer of each company shall furnish each member with a certifícate of membership, signed by such commanding officer, which shall prove such exemption in any court; but such certifícate shall be revoked when the holder is absent from four successive drills or parades, without good excuse.” It is not controverted that Garland was entitled to the exemption, and that the court was without power to compel him to serve as a juror, if shown by competent and sufficient proof that he was a member of the State troops. The exception goes to the sufficiency of his own statement, to prove that he comes within the exemption. The contention is, that, under the statute, the only evidence competent and sufficient for this purpose is the certifícate of the commanding officer.
The statute confers the right or privilege of exemption on the ground of membership, and during the membership, in consideration that a member of the State troops owes duties to the public which he may, at any moment, and in a sudden [615]*615emergency, be called upon to discharge. The privilege does not depend upon obtaining the certificate of the commanding officer, but upon the fact of membership. Should the commanding officer willfully refuse, or negligently fail to furnish such certificate, the member is not thereby deprived of his right to the exemption. The question, whether a person drawn as a juror comes within the exemption, is for the determination of the court; and in its ascertainment, the ordinary practice is, to examine the person claiming the exemption, on his voir dire, and to receive his own statement as prima facie evidence, which, if not controverted, is usually regarded sufficient to justify his excuse and discharge. The statute contains no words of negation, and it can not be implied from the terms of the provision itself, requiring the commanding officer to furnish each member with a certificate of membership, or from the context, that it was intended to make such certificate the exclusive means of proof. Such provision is cumulative, its special purpose and office being to provide an official instrument, “which shall prove such exemption in any court” — which shall be conclusive evidence. It does not disjfiace or abrogate other kinds of proof, deemed competent and sufficient in general practice, in cases of claims of exemption from jury duty. The case of Phillips v. State, 68 Ala. 569, is not in conflict Avitli this view. In that case, the exemption was claimed under a statute exempting the members of incorporated fire-companies. The persons claiming exemption Avere excused upon their mere statement of being firemen. This was held to be insufficient, on the ground that they might have been firemen, and yet not members of an incorporated fire-company. Another person proved his membership by his own statement, accompanied by the charter of the company exempting its members from jury duty; and this was held sufficient.
The character of the deceased for turbulence, violence, or revengefulness, is only admissible as evidence for the accused, in cases of homicide, when it tends to qaulify or explain the conduct of the deceased, or to illustrate the circumstances attending the homicide, and Avhicli, Avhen so qualified, explained, or illustrated, tend to produce in the mind of the accused a reasonable belief of imminent danger, or to aggravate the conduct of the deceased into a provocation mitigating the offense to a loAver degree.—Franklin v. State, 29 Ala. 14; Lang v. State, 84 Ala. 1; Rutledge v. State, 89 Ala. 85. The preliminary question, whether the conduct of the deceased, and the circumstances shown by the testimony, are such as to authorize the admission in evidence of his character, it is the province and duty of the court to determine. Before the court can be [616]*616put in error, the record, must disclose testimony prima facie bringing the admissibility of the evidence within the rule stated above.—Quesenberry v. State, 2 S. & P. 308.
The evidence as to the character of the deceased was offered on the cross-examination of the second witness examined on the part of the State. The testimony up to this time showed substantially the following facts, briefly stated: Deceased and defendant were engaged in a friendly scuffle; and when the scuffle ceased, deceased cut or struck at defendant, who turned and ran from him around a small house, followed by deceased. At this moment, the crowd, a short distance from them, began to throw stones, one of which struck deceased, and felled him. lie immediately recovered, and went staggering toward the crowd. At this moment defendant re-appeared, and struck deceased with a rock, or a piece of iron, which broke his skull, death resulting in a short time. There is nothing in these facts which, if qualified or explained by the character of deceased, though turbulent or violent, could tend to afford defendant any reasonable ground to believe he was, at the time, in peril. On the contrary, if the facts be as testified to by the' only two witnesses who had been then examined, the voluntary return of defendant to where, deceased was, tends to show that he did not apprehend serious harm. The evidence of deceased’s character was not admissible, upon the testimony introduced prior, and up to the time it was offered. Whether or not admissible upon the testimony subsequently offered, it is unnecessary to decide; for we can not consider, for the purpose of putting the court in error, as to a ruling not erroneous when made, any evidence subsequently introduced. If defend-. ant supposed that the subsequent testimony rendered the character of deceased admissible, he should have re-offered the evidence.—Hill v. Helton, 80 Ala. 528.
Defendant asked several charges relating to the matter of drunkenness, which were refused by the court. While drunkenness, voluntarily produced, does not, of itself, excuse or palliate an offense, it may be so excessive as to paralyze the mental faculties, rendering one incapable of premeditation, or of entertaining malice, and may, in extreme cases, reduce a homicide from murder to manslaughter. But, to produce this effect, it must be of such character and extent as to render the accused incapable of entertaining or forming the design to take life — incapable of rational action. These principles have been so repeatedly and lately declared by this court, that it is only necessary to state them.—Mooney v. State, 33 Ala. 419; Ford v. State, 71. Ala. 385; Morrison v. State, 84 Ala. 405.
[617]*617Tested by these principles, the first charge requested by •defendant does not state a correct legal proposition. A charge ■substantially similar was held to be erroneous in Morrison v. State, supra. Also, the first and second charges are argumentative in their nature, and for this reason, if no other, properly refused. But the third, fourth and fifth are in accord with the principles we have stated.
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OLOPTON, J.
Garland, whose name appears on the special venire, having been drawn, claimed exemption from jury duty under section 174 of the Code; and after being sworn and examined, was excused and discharged, against the objection of defendant, upon his own statement, that he was a member of the Sheffield Light Guards, and belonged to the Alabama State troops. The section declares: “ Every officer, commissioned or non-commissioned, musician and private, of the Alabama State troops, is exempt from jury duty during his membership; and the commanding officer of each company shall furnish each member with a certifícate of membership, signed by such commanding officer, which shall prove such exemption in any court; but such certifícate shall be revoked when the holder is absent from four successive drills or parades, without good excuse.” It is not controverted that Garland was entitled to the exemption, and that the court was without power to compel him to serve as a juror, if shown by competent and sufficient proof that he was a member of the State troops. The exception goes to the sufficiency of his own statement, to prove that he comes within the exemption. The contention is, that, under the statute, the only evidence competent and sufficient for this purpose is the certifícate of the commanding officer.
The statute confers the right or privilege of exemption on the ground of membership, and during the membership, in consideration that a member of the State troops owes duties to the public which he may, at any moment, and in a sudden [615]*615emergency, be called upon to discharge. The privilege does not depend upon obtaining the certificate of the commanding officer, but upon the fact of membership. Should the commanding officer willfully refuse, or negligently fail to furnish such certificate, the member is not thereby deprived of his right to the exemption. The question, whether a person drawn as a juror comes within the exemption, is for the determination of the court; and in its ascertainment, the ordinary practice is, to examine the person claiming the exemption, on his voir dire, and to receive his own statement as prima facie evidence, which, if not controverted, is usually regarded sufficient to justify his excuse and discharge. The statute contains no words of negation, and it can not be implied from the terms of the provision itself, requiring the commanding officer to furnish each member with a certificate of membership, or from the context, that it was intended to make such certificate the exclusive means of proof. Such provision is cumulative, its special purpose and office being to provide an official instrument, “which shall prove such exemption in any court” — which shall be conclusive evidence. It does not disjfiace or abrogate other kinds of proof, deemed competent and sufficient in general practice, in cases of claims of exemption from jury duty. The case of Phillips v. State, 68 Ala. 569, is not in conflict Avitli this view. In that case, the exemption was claimed under a statute exempting the members of incorporated fire-companies. The persons claiming exemption Avere excused upon their mere statement of being firemen. This was held to be insufficient, on the ground that they might have been firemen, and yet not members of an incorporated fire-company. Another person proved his membership by his own statement, accompanied by the charter of the company exempting its members from jury duty; and this was held sufficient.
The character of the deceased for turbulence, violence, or revengefulness, is only admissible as evidence for the accused, in cases of homicide, when it tends to qaulify or explain the conduct of the deceased, or to illustrate the circumstances attending the homicide, and Avhicli, Avhen so qualified, explained, or illustrated, tend to produce in the mind of the accused a reasonable belief of imminent danger, or to aggravate the conduct of the deceased into a provocation mitigating the offense to a loAver degree.—Franklin v. State, 29 Ala. 14; Lang v. State, 84 Ala. 1; Rutledge v. State, 89 Ala. 85. The preliminary question, whether the conduct of the deceased, and the circumstances shown by the testimony, are such as to authorize the admission in evidence of his character, it is the province and duty of the court to determine. Before the court can be [616]*616put in error, the record, must disclose testimony prima facie bringing the admissibility of the evidence within the rule stated above.—Quesenberry v. State, 2 S. & P. 308.
The evidence as to the character of the deceased was offered on the cross-examination of the second witness examined on the part of the State. The testimony up to this time showed substantially the following facts, briefly stated: Deceased and defendant were engaged in a friendly scuffle; and when the scuffle ceased, deceased cut or struck at defendant, who turned and ran from him around a small house, followed by deceased. At this moment, the crowd, a short distance from them, began to throw stones, one of which struck deceased, and felled him. lie immediately recovered, and went staggering toward the crowd. At this moment defendant re-appeared, and struck deceased with a rock, or a piece of iron, which broke his skull, death resulting in a short time. There is nothing in these facts which, if qualified or explained by the character of deceased, though turbulent or violent, could tend to afford defendant any reasonable ground to believe he was, at the time, in peril. On the contrary, if the facts be as testified to by the' only two witnesses who had been then examined, the voluntary return of defendant to where, deceased was, tends to show that he did not apprehend serious harm. The evidence of deceased’s character was not admissible, upon the testimony introduced prior, and up to the time it was offered. Whether or not admissible upon the testimony subsequently offered, it is unnecessary to decide; for we can not consider, for the purpose of putting the court in error, as to a ruling not erroneous when made, any evidence subsequently introduced. If defend-. ant supposed that the subsequent testimony rendered the character of deceased admissible, he should have re-offered the evidence.—Hill v. Helton, 80 Ala. 528.
Defendant asked several charges relating to the matter of drunkenness, which were refused by the court. While drunkenness, voluntarily produced, does not, of itself, excuse or palliate an offense, it may be so excessive as to paralyze the mental faculties, rendering one incapable of premeditation, or of entertaining malice, and may, in extreme cases, reduce a homicide from murder to manslaughter. But, to produce this effect, it must be of such character and extent as to render the accused incapable of entertaining or forming the design to take life — incapable of rational action. These principles have been so repeatedly and lately declared by this court, that it is only necessary to state them.—Mooney v. State, 33 Ala. 419; Ford v. State, 71. Ala. 385; Morrison v. State, 84 Ala. 405.
[617]*617Tested by these principles, the first charge requested by •defendant does not state a correct legal proposition. A charge ■substantially similar was held to be erroneous in Morrison v. State, supra. Also, the first and second charges are argumentative in their nature, and for this reason, if no other, properly refused. But the third, fourth and fifth are in accord with the principles we have stated. They were asked for the purpose ■of obtaining instructions as legal propositions, preliminary and leading to the request to give the sixth charge, which is, "Whether the defendant, at the time of the homicide, was so drunk as to be incapable of forming an intent, is a conclusion to be drawn by the jury from all the evidence before them.” The charge is correct in asserting that whether the intoxication of appellant was so great as to render him incapable of forming a design or intent was a question exclusively for the jury.—Armor v. State, 63 Ala. 173. We presume the court refused the charge on the theory, that there was no evidence on which to base it. It is true, a refusal to give a charge, though it may state a correct legal proposition, is not a reversible error, unless it affirmatively appears there was evidence tending to prove every fact it supposes. But, when there is evidence so tending, though the court may consider it slight and insufficient, the question should not be taken from the jury-
There was evidence that defendant and deceased were both drunk, and that the crowd present were either drunk or drinking. The existence of malice was material in determining the degree of the homicide, whether murder or manslaughter. The inquiry as to its existence involved "an inquiry into the state of the mind of the accused at the time of the killing; and of consequence, it is proper to inquire whether he was then drunk or sober; and if drunk, whether the intoxication rendered him incapable of premeditation and deliberation,” or of forming a design or intent to take life.—Tidwell v. State, 70 Ala. 33. It being shown that defendant was drunk at the time of the homicide, he had a right to have the jury instructed as to the law in such cases, and to have them pass upon the sufficiency of the evidence to prove that his drunkenness was so excessive as to preclude the entertainment of malice.
Reversed and remanded.