Campbell, C. J.,
delivered the opinion of the court.
It was not erroneous to draw the special venire and set a .day for the trial of the case while another case was being tried. The continuance asked was properly denied. Bowen, one of the absent witnesses, because of whose absence the continuance was applied for, was produced and introduced on the trial by the State, and testified that he knew nothing of the case. The facts stated in the affidavit as provable by the absent witness, Roberts, were not ad[474]*474missible. Yates, the other absent witness, resided in an adjoining county, and might have been immediately obtained by attachment, so far as appears, and produced during the trial, which continued ten days, but he was not obtained, nor was his affidavit, on the hearing of the motion for a new trial; and all that it was alleged could be proved by him which was competent testimony was testified to by others. The prisoner did not suffer from the absence of Yates.
The court rightly refused to require the district attorney to admit that the absent witnesses would testify as set forth in the affidavit for continuance.
The ruling of the court with reference to § 3059 of the code was correct. That section does not abridge the right of the accused to have a fair and impartial trial with compulsory process for witnesses as secured by the constitution, but it very properly requires that an application for continuance for causes existing at the time of drawing a special venire shall be then made, and not afterward, unless a good excuse is shown for not having made the application before. It is no wrong to the accused to require him, if he has cause for continuance when a special venire is drawn, to present it then, and not delay as to such cause until many have been brought into court to be dismissed upon a continuance of the case for causes existing when the venire was drawn.
The course of the court in requiring all examination of jurors as to their competency before passing on it was strictly correct. Opportunity was given the counsel for the prisoner to fully examine the jurors as to their qualifications, and as the privilege was declined when offered, it could not afterward be claimed.
The juror Gandy was free from objection. The fact that he had conversed with one of the witnesses made no difference, as he had no opinion as to the guilt or innocence of the prisoner. Code, § 3072.
The admission of Ware’s testimony was proper. It consisted of what was said between him and the prisoner on trial the night before the killing in an interview sought by the prisoner in which the relations between the Penns and Bials was the subject of conversation.
[475]*475That part of Carey C. Birdsong’s testimony which related to an alleged declaration of the witness Bostic was properly excluded, because by it the effort was made to contradict Bostic without having laid the foundation by asking him if he had used the language attributed to him by Birdsong at the time and place mentioned.
The foundation was laid to contradict Bostic as to what he said the next day after the homicide to Tom Ed. Grroome, but it does not appear from the record before us that Grroome was offered as a witness.
We do not decide that it would have been erroneous to exclude the evidence of Birdsong if the proper foundation had been laid, but decline to pass on that question as not presented, and put our decision on the ground above stated. On the same ground Lovelace’s testimony was rightfully excluded, and for the further reason that it was irrelevant to the issue.
On the ground last mentioned the testimony of Aiken and Berberovitch was rightly excluded. It would have shown only that Bostic and Rials had pistols, and exhibited them at Wilson’s saloon an hour or two before the killing, but this had no relation to the Penns and would not have thrown any light on the issue to be tried. That Bostic had two pistols and that Rials had one at the time of the homicide is abundantly shown by the evidence in the case. The foolish demonstrations and declarations proposed to be shown by these witnesses are not said to have been known to the Penns, and would have been of no value in the trial.
There is no just objection to the admission of the testimony of the witness McLemore.
The testimony of the witness Wright as to what Rials said to him the night before the homicide was improperly allowed to go to the jury. The purport of it was that Rials stated that the Penns were pursuing him and intended to kill him. This was not in the hearing of the Penns, and was not admissible against the prisoner, but it could not have harmed him, because the course and conduct of the Penns toward Rials Monday night was shown by many witnesses. It did appear as if the Penns were pursuing [476]*476Rials that night. He went into a saloon and they went in, attracted, they swear, by hearing Rials declare his purpose to kill one of them, and their object in going in was to see about it. No other person there heard the alleged declaration of Rials, and the speedy retirement of Rials escorted by Wright from their presence in the saloon must have impressed them with the belief that there was no danger from him. He returned to Faler’s Hall and. the prisoner and his brother went there, and the former entered the hall with no object, he swears, while the other remained at the foot of the stairs. Rials again called the attention of Wright to his pursuit by the Penns and left the hall attended by friends. In a little while Rials was in front of a store and the Penns arrived there, and the prisoner asked Ware to step aside with him, and had a conversation about Rials and the difficulty between Rials and H. B. Penn, and about “shooting it out” as the only way to settle it, and requested Ware to deliver a message on that subject to Rials. In a little while after this Rials was found at the depot and the Penns were there, and were cursing Rials and demanding that the difficulty should be settled then and there, as the most favorable time and place for it. Rials shrank from them; signified his desire to have a friendly and peaceful settlement; appealed to Rev. Mr. Millsaps, who was present, to say if he was not. right in desiring a friendly settlement • declared he was not armed and had no friend there, and jumped behind Mr. Millsaps to put him between himself and his infuriated foes, when the witness Wright interposed to insist, in behalf of fair play, that Rials should be allowed to go for arms and a friend, and in that way got him away from the Penns. It is true they did not kill Rials that night. What would have been the result if Wright had not interfered as he did to get Rials off must be matter for conjecture. The homicide of Rials the next day, coupled with the occurrences of the night, already detailed, was proof of the fact that the Penns were following Rials Monday night intent on mortal combat. As this was made so manifest, the error of permitting Rials’ declaration to Wright to go to the jury did not add anything to the array of evidence on this point.
[477]*477The instructions given at the instance of the district attorney are free from error.
The prisoner got the benefit, of all the instructions he was entitled to. The twelfth instruction for him gave the sanction of the court to the proposition that the jury should acquit if it believed the state of facts sworn to by the accused and his brother and some of the witnesses for him.
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Campbell, C. J.,
delivered the opinion of the court.
It was not erroneous to draw the special venire and set a .day for the trial of the case while another case was being tried. The continuance asked was properly denied. Bowen, one of the absent witnesses, because of whose absence the continuance was applied for, was produced and introduced on the trial by the State, and testified that he knew nothing of the case. The facts stated in the affidavit as provable by the absent witness, Roberts, were not ad[474]*474missible. Yates, the other absent witness, resided in an adjoining county, and might have been immediately obtained by attachment, so far as appears, and produced during the trial, which continued ten days, but he was not obtained, nor was his affidavit, on the hearing of the motion for a new trial; and all that it was alleged could be proved by him which was competent testimony was testified to by others. The prisoner did not suffer from the absence of Yates.
The court rightly refused to require the district attorney to admit that the absent witnesses would testify as set forth in the affidavit for continuance.
The ruling of the court with reference to § 3059 of the code was correct. That section does not abridge the right of the accused to have a fair and impartial trial with compulsory process for witnesses as secured by the constitution, but it very properly requires that an application for continuance for causes existing at the time of drawing a special venire shall be then made, and not afterward, unless a good excuse is shown for not having made the application before. It is no wrong to the accused to require him, if he has cause for continuance when a special venire is drawn, to present it then, and not delay as to such cause until many have been brought into court to be dismissed upon a continuance of the case for causes existing when the venire was drawn.
The course of the court in requiring all examination of jurors as to their competency before passing on it was strictly correct. Opportunity was given the counsel for the prisoner to fully examine the jurors as to their qualifications, and as the privilege was declined when offered, it could not afterward be claimed.
The juror Gandy was free from objection. The fact that he had conversed with one of the witnesses made no difference, as he had no opinion as to the guilt or innocence of the prisoner. Code, § 3072.
The admission of Ware’s testimony was proper. It consisted of what was said between him and the prisoner on trial the night before the killing in an interview sought by the prisoner in which the relations between the Penns and Bials was the subject of conversation.
[475]*475That part of Carey C. Birdsong’s testimony which related to an alleged declaration of the witness Bostic was properly excluded, because by it the effort was made to contradict Bostic without having laid the foundation by asking him if he had used the language attributed to him by Birdsong at the time and place mentioned.
The foundation was laid to contradict Bostic as to what he said the next day after the homicide to Tom Ed. Grroome, but it does not appear from the record before us that Grroome was offered as a witness.
We do not decide that it would have been erroneous to exclude the evidence of Birdsong if the proper foundation had been laid, but decline to pass on that question as not presented, and put our decision on the ground above stated. On the same ground Lovelace’s testimony was rightfully excluded, and for the further reason that it was irrelevant to the issue.
On the ground last mentioned the testimony of Aiken and Berberovitch was rightly excluded. It would have shown only that Bostic and Rials had pistols, and exhibited them at Wilson’s saloon an hour or two before the killing, but this had no relation to the Penns and would not have thrown any light on the issue to be tried. That Bostic had two pistols and that Rials had one at the time of the homicide is abundantly shown by the evidence in the case. The foolish demonstrations and declarations proposed to be shown by these witnesses are not said to have been known to the Penns, and would have been of no value in the trial.
There is no just objection to the admission of the testimony of the witness McLemore.
The testimony of the witness Wright as to what Rials said to him the night before the homicide was improperly allowed to go to the jury. The purport of it was that Rials stated that the Penns were pursuing him and intended to kill him. This was not in the hearing of the Penns, and was not admissible against the prisoner, but it could not have harmed him, because the course and conduct of the Penns toward Rials Monday night was shown by many witnesses. It did appear as if the Penns were pursuing [476]*476Rials that night. He went into a saloon and they went in, attracted, they swear, by hearing Rials declare his purpose to kill one of them, and their object in going in was to see about it. No other person there heard the alleged declaration of Rials, and the speedy retirement of Rials escorted by Wright from their presence in the saloon must have impressed them with the belief that there was no danger from him. He returned to Faler’s Hall and. the prisoner and his brother went there, and the former entered the hall with no object, he swears, while the other remained at the foot of the stairs. Rials again called the attention of Wright to his pursuit by the Penns and left the hall attended by friends. In a little while Rials was in front of a store and the Penns arrived there, and the prisoner asked Ware to step aside with him, and had a conversation about Rials and the difficulty between Rials and H. B. Penn, and about “shooting it out” as the only way to settle it, and requested Ware to deliver a message on that subject to Rials. In a little while after this Rials was found at the depot and the Penns were there, and were cursing Rials and demanding that the difficulty should be settled then and there, as the most favorable time and place for it. Rials shrank from them; signified his desire to have a friendly and peaceful settlement; appealed to Rev. Mr. Millsaps, who was present, to say if he was not. right in desiring a friendly settlement • declared he was not armed and had no friend there, and jumped behind Mr. Millsaps to put him between himself and his infuriated foes, when the witness Wright interposed to insist, in behalf of fair play, that Rials should be allowed to go for arms and a friend, and in that way got him away from the Penns. It is true they did not kill Rials that night. What would have been the result if Wright had not interfered as he did to get Rials off must be matter for conjecture. The homicide of Rials the next day, coupled with the occurrences of the night, already detailed, was proof of the fact that the Penns were following Rials Monday night intent on mortal combat. As this was made so manifest, the error of permitting Rials’ declaration to Wright to go to the jury did not add anything to the array of evidence on this point.
[477]*477The instructions given at the instance of the district attorney are free from error.
The prisoner got the benefit, of all the instructions he was entitled to. The twelfth instruction for him gave the sanction of the court to the proposition that the jury should acquit if it believed the state of facts sworn to by the accused and his brother and some of the witnesses for him. The sixteenth instruction for the prisoner gave him the benefit of the broader proposition, that he was to be acquitted if he shot Rials under a reasonable apprehension that he designed to commit a felony on or do some great personal injury toH. B. Penn and there was imminent danger of the accomplishment of such design ; and other instructions informed the jury that any.reasonable doubt of guilt entitled the prisoner to be acquitted, and that if any other reasonable hypothesis than his guilt could be found in the facts he was not to be found guilty. The particular theory of the defendant as to the character of the homicide was submitted to the jury specifically in the twelfth instruction he asked, and by the sixteenth he got the benefit of any other view which might be deduced from the evidence. After the court had fully covered the case, giving the prisoner the benefit of every principle of law applicable, it was not required to repeat the announcement of legal principles or to incur the hazard of confusing the jury by giving instructions not needed to guide it or calculated to mislead. > 1
It made no difference that the indictment was not formally read to the jury on the trial. The only purpose of reading it would have been to inform the jury of the charge against the prisoner, and certainly the jury was well informed as to that.
It is regrettable that the prisoner’s counsel were not present when the verdict was received, but as the jury was polled, and counsel could not have had anything more than that done if present, it cannot be said that any harm resulted from the absence of the counsel.
The court might properly have inquired of the jury what was meant by the addition to the finding of guilty the words, “ and plead the mercy of the court.” What took place suggests that the [478]*478idea of the imprisonment of the prisoner in the penitentiary for life was not in the minds of the jury, for had it been the juror, Cammack, would not have made the remark he did in response to the declaration by the judge that he could show no mercy. The verdict is complete and good as rendered. It is not hurt by the surplusage. There is nothing in the addition to the finding or in what took place when the verdict was handed in and read out to induce a belief that the jury intended to fix the punishment at imprisonment for life. Having concurred in finding that the prisoner was guilty as charged, it was necessary for all of the jurors to concur in prescribing the punishment at imprisonment for life to produce that result. It does appear, unmistakably, that the twelve concurred in a finding of guilty. It does not appear from the verdict as rendered or what was said at the time in reference to it that any juror, much less all, was dissatisfied with it. As all said the prisoner was guilty, the duty of the court was to pronounce the sentence of the law, i. e., the death penalty, unless all of the jury agreed on imprisonment for life as a punishment. The j ury was polled and each juror declared the verdict his. This was after the judge had announced that he could show no mercy. Surely, if the subject of punishment and a desire to save the prisoner from the penalty of death had occupied the minds of the jurors, some of them would have made it known, under the circumstances, in response to the inquiry, “ Is this your verdict ?” and all would not have assented to it without qualification or restriction, as they did.
It is true that since the trial the affidavit of one juror of the twelve who tried the prisoner has been produced as to the understanding and purpose of the jury, but it is not allowable thus to amend or impair the verdict. It is significant that the affidavit of only one of the twelve was offered on this subject; but all are as incompetent to destroy their verdict as one is.
The counsel for the prisoner chose not to have the jury instructed that it might imprison the accused for life upon finding him guilty,-and it is not allowable for him to escape the penalty the law imposes for his crime because of the fact that from some unexplained cause the finding of his guilt by the jury was added to [479]*479by a plea to the court for mercy. If there was a just doubt of the concurrence of his twelve triers as to his being guilty of the charge on which he was tried, the verdict should not stand; but that all concurred in pronouncing him guilty as charged is beyond doubt, and is not questioned even by the affidavit of the juror produced on the motion for new trial.
We could wish that this apparent cloud upon the verdict had been dispelled, as we think it would have been, by hearing the response of the jury through Mr. Cammack, who undertook to speak for it, as to what induced the jury to add to its finding the words already given above.
The most probable suggestion is that the addition was made to meet the views or wishes of some of the jury, and explanation would have shown this, and the penalty of the law would have followed the finding of guilty, even although eleven of the jury might have willed otherwise. If eleven of the jury, while assenting to the finding of guilty, had declared their dissent from the capital punishment of the prisoner, he would properly have been sentenced to death, for it is only when all concur in fixing that punishment that it can take the place of the- sentence the law pronounces.
We have given this case that care and attention its importance makes proper, and have carefully considered the many grounds of error assigned and urged by zealous and able counsel for the appellant, with the result that there is in the record no error of sufficient importance to authorize a disturbance of the judgment of the circuit court; indeed, there is, as we have shown, but one error against the prisoner in the entire record, and that We regard as unimportant and harmless in view of all the developments of the trial.
Affirmed.