STONE, C. J. —
1. The statute prescribes, that at least fifteen persons must be sworn, to constitute a grand jury. Code of 1876, § 4753. It is contended for the prisoner, that under a proper interpretation of the caption, or recorded organi[7]*7zation of the court at which the indictment was found, only twelve persons constituted the grand jury. We do not so interpret the record. According to our construction, of the eighteen persons named in the venire, three named persons — T. R. Sylvester, Hugh McLean, and D. McDonald — were excused by the court, and the remaining fifteen were sworn and organized into a grand jury, with O. H. Spencer as foreman. There is nothing in this objection.
2. The defendant was tried and convicted at an irregular, or extra session of the court. In some of the proceedings, the term is called an adjourned term, and in others a special term. It seems to have been appointed and called in both forms. While the regular Spring term was in session — May 30th, 1884 —the court caused the following order to be entered on the minutes: “ The defendant, E. R. Martin, alias Edward R. Martin, being present in open court, and attended by counsel, it is ordered by the court, that Wednesday, the 16th day of July next, be set for the trial of this case, and that fifty competent persons be drawn and summoned for the trial of this case ; and the defendant being in actual confinement, it is further ordered, that a list of the persons so drawn and summoned, and a copy of the indictment, be served on the defendant in person, so soon as practicable.” On the next day, the following order was made : “ And now, on this, the 31st day of May, A. D. 1884, the presiding judge having failed to dispose of all the business, it is ordered by the court, that the court do now adjourn until Wednesday, the 16th day of July next, when it will re-open to dispose of unfinished'business ; and there being a capital felony for trial at said adjourned term, it is further ordered, that the names of fifty competent persons be drawn from the box by the proper officers, as required by law, to serve as petit jurors at said adjourned term.”
Up to this point, there can be no question that the July term was to be in all respects an adjourned term, under the act “ to require circuit judges more promptly to dispose of all business in the Circuit Courts,” approved February 29,1876. — Sess. Acts, 210 ; Code of 1876, § 654.
When the court convened in July, the following entry was made: “ On this, the 16th day of July, A. D. 1884, the Circuit Court of said county met, and was opened in form in adjourned term, in pursuance of the following order, to-wit : “ Circuit Court, Spring term, 1884. It appearing that Ed. R. Martin, alias Edward R. Martin, is now confined in jail under an indictment for murder, and the time fixed by law for the regular term of the courtis insufficient for the trial of said case; it is therefore ordered, that a special term of the Circuit Court for Barbour county will be held, beginning on Wednesday, the [8]*816th July next, for the trial of the said Edward R. Martin under said indictment; and it is further ordered, that fifty competent jurors be drawn and summoned, as provided by law, and that thirty days notice of said special term of said court be given by advertisement of this order in the Clayton Courier, a newspaper published in said county. Signed and dated this 31st day of May, 1884. ‘H. D. Clayton, Judge 3d judicial circuit.’ Which said order was published for thirty days, as notice of said special term, in the Clayton Courier, a newspaper published in said county: Present and presiding, lion. IT. I). Clayton,” &c.
This is a full compliance with the statute “to provide for holding special terms of the Circuit Court,” approved Eebruary3d, 1875. — Sess. Acts,. 201; Code of 1876, § 652. Wehave a case, then, of a court which was lawfully appointed and called, both as an adjourned term and as a special term.
The order setting a day for the trial of the accused was made during the regular term, on May 30; while the order made for the adjourned term was not entered of record until May 31. It is contended that the order setting the day for the trial was invalid, because, when it was made, July 16 was not a day of a lawful term of the court, as matters then stood; in other words, that the day set was then outside of any lawful term of the court. This objection is more specious than real. It is said that, during the term of a- court, all the proceedings are in the breast of the judge. The meaning of this is, that so long as the term of the court lasts, all judgments or orders are subject to be vacated, recalled, or modified, at the pleasure or will of the presiding judge. The inference is irresistible, that when the order was made, fixing the day for defendant’s trial, the court had determined to hold an adjourned or special term, and had determined the day on which it would be held. The entry of such order on the records is usually and naturally the last order made at the regular term. It is then the court adjourns to a future day, called an adjourned term. It is difficult to conceive of any injury this could do the defendant. He was present in court when the order was made, and was as fully notified thereby, as if the order fixing the adjourned term had been previously entered of record. The court did not err in fixing, at the regular term, the day for the trial of the defendant at the adjourned term. The statute provides, that the “judge may prescribe the order in which such unfinished business shall be disposed of.”
3. It is objected, however, that the venire for the trial of the accused should not have been “drawn and summoned,” but should have been constituted as venires are in the trial of capital cases at regular terms: — Code of 1876, § 4874.
[9]*9It must be borne in mind, that the term of the court, at which the defendant was tried, was legally ordered and called, alike as an adjourned and as a special- term. The jury was drawn and summoned in exact pursuance of statutory requirements for juries at special terms of the court. A capital felony was to be tried, and the court ordered fifty names to be drawn and summoned. — Oode of 1876, § 4739. These constitute the venire, from which the jury is to b¿ selected and organized, unless the panel is exhausted before the jury is complete; in which case, talesmen must be summoned as in other capital cases. — Levy v. The State, 48 Ala. 171. We are satisfied this is the true spirit and interpretation of the section under discussion ; for section 4S74 of the Oode contemplates that there will be in attend'ance regular juries for the week or term, who constitute a part of the venire the sheriff is commanded to summon. This is not consistent with the directions for summoning juries for special terms of the court. — Oode, § 4739. There is nothing in this objection. We may add, that there was no objection in the court below to the manner of summoning the venire; but we do not make this the ground of our decision.
For myself, I incline to the opinion, that section 4739 of the Oode of 1876 should be held to apply to all extra terms, whether special or adjourned. The substance of that section is found in the Oode of 1852, § 3446 ; Bev. Oode, § 4068. At that time, and until February 29, 1876, adjourned terms were not known.
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STONE, C. J. —
1. The statute prescribes, that at least fifteen persons must be sworn, to constitute a grand jury. Code of 1876, § 4753. It is contended for the prisoner, that under a proper interpretation of the caption, or recorded organi[7]*7zation of the court at which the indictment was found, only twelve persons constituted the grand jury. We do not so interpret the record. According to our construction, of the eighteen persons named in the venire, three named persons — T. R. Sylvester, Hugh McLean, and D. McDonald — were excused by the court, and the remaining fifteen were sworn and organized into a grand jury, with O. H. Spencer as foreman. There is nothing in this objection.
2. The defendant was tried and convicted at an irregular, or extra session of the court. In some of the proceedings, the term is called an adjourned term, and in others a special term. It seems to have been appointed and called in both forms. While the regular Spring term was in session — May 30th, 1884 —the court caused the following order to be entered on the minutes: “ The defendant, E. R. Martin, alias Edward R. Martin, being present in open court, and attended by counsel, it is ordered by the court, that Wednesday, the 16th day of July next, be set for the trial of this case, and that fifty competent persons be drawn and summoned for the trial of this case ; and the defendant being in actual confinement, it is further ordered, that a list of the persons so drawn and summoned, and a copy of the indictment, be served on the defendant in person, so soon as practicable.” On the next day, the following order was made : “ And now, on this, the 31st day of May, A. D. 1884, the presiding judge having failed to dispose of all the business, it is ordered by the court, that the court do now adjourn until Wednesday, the 16th day of July next, when it will re-open to dispose of unfinished'business ; and there being a capital felony for trial at said adjourned term, it is further ordered, that the names of fifty competent persons be drawn from the box by the proper officers, as required by law, to serve as petit jurors at said adjourned term.”
Up to this point, there can be no question that the July term was to be in all respects an adjourned term, under the act “ to require circuit judges more promptly to dispose of all business in the Circuit Courts,” approved February 29,1876. — Sess. Acts, 210 ; Code of 1876, § 654.
When the court convened in July, the following entry was made: “ On this, the 16th day of July, A. D. 1884, the Circuit Court of said county met, and was opened in form in adjourned term, in pursuance of the following order, to-wit : “ Circuit Court, Spring term, 1884. It appearing that Ed. R. Martin, alias Edward R. Martin, is now confined in jail under an indictment for murder, and the time fixed by law for the regular term of the courtis insufficient for the trial of said case; it is therefore ordered, that a special term of the Circuit Court for Barbour county will be held, beginning on Wednesday, the [8]*816th July next, for the trial of the said Edward R. Martin under said indictment; and it is further ordered, that fifty competent jurors be drawn and summoned, as provided by law, and that thirty days notice of said special term of said court be given by advertisement of this order in the Clayton Courier, a newspaper published in said county. Signed and dated this 31st day of May, 1884. ‘H. D. Clayton, Judge 3d judicial circuit.’ Which said order was published for thirty days, as notice of said special term, in the Clayton Courier, a newspaper published in said county: Present and presiding, lion. IT. I). Clayton,” &c.
This is a full compliance with the statute “to provide for holding special terms of the Circuit Court,” approved Eebruary3d, 1875. — Sess. Acts,. 201; Code of 1876, § 652. Wehave a case, then, of a court which was lawfully appointed and called, both as an adjourned term and as a special term.
The order setting a day for the trial of the accused was made during the regular term, on May 30; while the order made for the adjourned term was not entered of record until May 31. It is contended that the order setting the day for the trial was invalid, because, when it was made, July 16 was not a day of a lawful term of the court, as matters then stood; in other words, that the day set was then outside of any lawful term of the court. This objection is more specious than real. It is said that, during the term of a- court, all the proceedings are in the breast of the judge. The meaning of this is, that so long as the term of the court lasts, all judgments or orders are subject to be vacated, recalled, or modified, at the pleasure or will of the presiding judge. The inference is irresistible, that when the order was made, fixing the day for defendant’s trial, the court had determined to hold an adjourned or special term, and had determined the day on which it would be held. The entry of such order on the records is usually and naturally the last order made at the regular term. It is then the court adjourns to a future day, called an adjourned term. It is difficult to conceive of any injury this could do the defendant. He was present in court when the order was made, and was as fully notified thereby, as if the order fixing the adjourned term had been previously entered of record. The court did not err in fixing, at the regular term, the day for the trial of the defendant at the adjourned term. The statute provides, that the “judge may prescribe the order in which such unfinished business shall be disposed of.”
3. It is objected, however, that the venire for the trial of the accused should not have been “drawn and summoned,” but should have been constituted as venires are in the trial of capital cases at regular terms: — Code of 1876, § 4874.
[9]*9It must be borne in mind, that the term of the court, at which the defendant was tried, was legally ordered and called, alike as an adjourned and as a special- term. The jury was drawn and summoned in exact pursuance of statutory requirements for juries at special terms of the court. A capital felony was to be tried, and the court ordered fifty names to be drawn and summoned. — Oode of 1876, § 4739. These constitute the venire, from which the jury is to b¿ selected and organized, unless the panel is exhausted before the jury is complete; in which case, talesmen must be summoned as in other capital cases. — Levy v. The State, 48 Ala. 171. We are satisfied this is the true spirit and interpretation of the section under discussion ; for section 4S74 of the Oode contemplates that there will be in attend'ance regular juries for the week or term, who constitute a part of the venire the sheriff is commanded to summon. This is not consistent with the directions for summoning juries for special terms of the court. — Oode, § 4739. There is nothing in this objection. We may add, that there was no objection in the court below to the manner of summoning the venire; but we do not make this the ground of our decision.
For myself, I incline to the opinion, that section 4739 of the Oode of 1876 should be held to apply to all extra terms, whether special or adjourned. The substance of that section is found in the Oode of 1852, § 3446 ; Bev. Oode, § 4068. At that time, and until February 29, 1876, adjourned terms were not known. It would maintain the harmony of the system to give it this interpretation, and I confess myself unable to find in the two statutes — that of February 3, 1875, and that of February 29, 1876 — a substantial reason for different interpretation. Each statute, in a sense, provides for an extra term of the court, and each authorizes a special, as distinguished from a general term. In each, as provided to be organized, there will be difficulty in fiuding “regular juries for the week or term,” to constitute a part of the venire the sheriff is required to summon under section 4874 of the Code. This question, however, is not intended to be decided.
'4. The questions to Bush, and his answers to them, do not raise the question of proving the details of a previous difficulty. That is not permissible, lest, in passing on the merits of one charge, the attention of the jury may be diverted, or confused, by laying before them the details and merits of another. — McAnally v. The State, 74 Ala. 9. The true question was one of the entirety of a conversation. Part of the conversation had been proved against the defendant, as a threat. Thereupon, defendant called out other parts of the same conversation, deemed favorable to himself. The State [10]*10then called for the whole conversation relating to the same subject-matter. This either party was entitled to, for the better understanding of that part already in evidence. — McLean v. The State. 16 Ala. 672 ; 1 Green 1. Ev. § 201.
5. There was no error in permitting Mrs. Patterson to testify, that the deceased, when he left home, told her he was going to Mount Andrew. It was legal evidence, as a res gestee declaration. — 1 Greenl. Ev. § 108.
6. The testimony sought to be elicited from the witness, McKenzie, was not iegal evidence. It was res gestee to nothing, and its admission would have been to allow defendant to make testimony for himself. — McLean v. The State, 16 Ala. 672; The State v. Umfried, 76 Mo. 404; Rea v. The State, 8 B. J. Lea, 356; Billingslea v. The State, 68 Ala. 486; Stewart v. The State, 63 Ala. 199.
The first page of the charges is stated so confusedly that we can not undertake to decide the questions attempted to be raised.
7. The court gave, at the instance of the State,-charges Nos. 4, 6, 7, 8, 9, 10, 11, 14, 15 and 16; and to the giving of each defendant excepted. They relate to the doctrine of malice, provocation of the difficulty, retreat, and self-defense; and are in strict harmony with many rulings of this court. — Mitchell v. The State, 60 Ala. 26; Ex parte Brown, 65 Ala. 446; Ingram v. The State, 67 Ala. 67; Gross v. The State, 63 Ala. 40 ; Storey v. The State, 71 Ala. 329 ; DeArman v. The State, Ib. 351.
8. Explanatory charges 3 and 5 are free from error.— Coleman v. The State, 59 Ala. 52; Bain v. The State, 74 Ala. 38.
Affirmed.