SOMERVILLE, J.
The objections raised to the organization of the grand jury in this case were considered, when .the case was last here by appeal, at the December term, 1880. We are satisfied, without further discussion, that the conclusion then reached by us was correct, and that these objections were not well taken.—Roberts v. State, at the last term; Acts 1878-9, p. 204.
The fact that the sheriff summoned on the special venire incompetent jurors who were disqualified to act, for any reason, statutory or otherwise, was no ground for quashing the venire. Such disqualifications would only furnish grounds upon which to challenge for cause.—Gray v. State, 55 Ala. 86. Nor would the rule be otherwise, even if such disqualification was hnoion to the sheriff at the time he summoned them, unless it appears from the record that, without them, there was not a sufficient number of good and lawful men, from whom an impartial jury could be selected.—Commander v. State, 60 Ala. 1.
The motion to quash the venire should', however, have been sustained, very clearly, upon another ground specified in the record. The list of special jui'ors, ordered by the court to bé summoned, contained the names' of only ninety-nine, instead of. one hundred persons, the name of the same person appearing tioice in the list. The prisoner was on trial for a capital felony, and in actual confinement. He was, therefore, entitled, as matter of right, to the benefit of those statutory provisions which are designed as safeguards to the security of a fair and impartial jury trial, such as the constitution intends to guarantee. The statute is mandatory, that in the trial of capital offenses, “ the court must make an order, commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those summoned on the regular juries of the week, or term when the term does not exceed one week.”—Code 1876, § 4874. This order was made by the court, and the number was fixed at one hundred, as a proper number of persons to constitute the special venire in this case. So long as this order remained unrevoked, the prisoner had the lawful right to insist that the venire should be constituted in accordance with such judicial direction. To have summoned ninety-nine persons, was just as much a violation of this order, as to have summoned fifty-nine, the difference being in degree only, and- not in the matter of spirit or substance. So, likewise, the statute is mandatory, and not directory merely, that in [523]*523such cases, “ a copy of tbe indictment, and a list of the jurors summoned for Ms trial, including tbe regular jury, must be delivered to him [tbe prisoner] at least one entire day before tbe day appointed for bis trial.”—Code 1876, § 4872. Tbis list should have been one constituted in accordance with tbe mandate of tbe court. It should have contained tbe names of one hundred persons, and not of any less number. This was very important to tbe prisoner, as affording him “ tbe opportunity of ascertaining whether causes for challenge existed ; and, also, for tbe purpose of enabling him to exercise, understanding^, the privileges conferred upon him as to peremptory challenges.”—Parsons v. The State, 22 Ala. 50. The above statutes have ¡beemconstrued by tbis court not to be directory merely, but as conferring benefits which are matters of right; and a failure to comply with them, if not waived.by the defendant in the court below, constitutes such error as to authorize the reversal of a judgment of conviction on appeal to this court.—Williams v. State, 48 Ala. 85; Nutt v. State, 62 Ala. 180; Bell v. State, 59 Ala. 55; Parsons v. State, supra.
The above defect is not cured by the influence of section 4876 of the Code, which provides that “ a mistake in the name of any person summoned as a juror for the trial of a capital offense, either in the venire, or in the list of jurors delivered to the defendant, is not sufficient cause to quash the venire, or to delay or continue the trial, unless the court, in its discretion, is of opinion that the ends of justice so require.” When there is a mere mistake in the name, by reason of erroneous orthography, or otherwise, the names of such persons may be discarded, and others summoned to supply their places. But the error in this case is not a mere mistake in the name of one summoned as a juror ; it is a failure of the sheriff to comply with a judicial order made for the organization of a legal jury.—Hall v. State, 51 Ala. 9; Floyd v. State, 55 Ala. 61; Rash v. State, 61 Ala. 89.
Our conclusion is, that the court erred in not sustaining the motion to quash, so as to have ordered a venire de novo.
We think the rule is settled by the decisions of this court, as well as by the principles of criminal procedure at com*. mon law, being applicable alike to misdemeanors and felonies, that, where a juror is disqualified to serve, and such disqualification was not known at the time of his acceptance, or. was concealed, without lack of diligence to discover it on the part of the objector, he may be challenged for cause at any time before he is sworn. There was, for this reason, no error in permitting the State’s solicitor to challenge Seymore, as his disqualification was not disclosed on his voir dire, but [524]*524only while in the act of taking the required oath. The qualification attempted to be affixed to the oath was tantamount to a refusal to take it. Hence, he had not been sworn when challenged.—1 Bish. Cr. Proc. § 932; State v. Croome, 10 Iowa, 308; Smith v. State, 55 Ala. 1; Sparks v. State, 59 Ala. 82; Spigener’s case, 62 Ala. 383, 387. The rule is different, however, after a juror has not only been accepted, but has been sworn (Rash v. State, 61 Ala. 90); unless he has been excused or challenged by consent, or the cause be one that has originated since he was sworn.—Hawkins P. C. 568.
The oath administered to the jury in this case was, “to well and truly try the issue joined between the State and the prisoner.” It is insisted that this was not a substantial compliance with the statute, because it omits the sentence, “ and a true verdict render according to the evidence, so help you God.”—Code, § 4765. It is unnecessary to decide the point, which, in effect, is differently decided in the case of Edwards v. State, 49 Ala. 334, and that of Gardner v. State, 48 Ala. 263. The conflicting authorities are sought to be reconciled in Mitchell’s case, 58 Ala. 417, where the true construction of the statute is probably stated by Mr. Justice MANNING. We dismiss this particular subject, with the observation, that it is sufficient, if the entry shows, simply, that the jury was “ duly sworn,” or was “ sworn according to law;” and this is the safer practice, as being more likely to avoid a technical error, the commission of which has brought to this court a multiplicity of cases, and has thereby greatly delayed the speedy administration of justice.—Mitchell’s case, supra.
We can not see that the court erred, in excluding the question propounded at the instance of the accused, asking “ luhat business Eankin ” [the deceased] “ had been engaged in ?” The question was not answered, nor was it stated what was proposed to be proved in response to it.
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SOMERVILLE, J.
The objections raised to the organization of the grand jury in this case were considered, when .the case was last here by appeal, at the December term, 1880. We are satisfied, without further discussion, that the conclusion then reached by us was correct, and that these objections were not well taken.—Roberts v. State, at the last term; Acts 1878-9, p. 204.
The fact that the sheriff summoned on the special venire incompetent jurors who were disqualified to act, for any reason, statutory or otherwise, was no ground for quashing the venire. Such disqualifications would only furnish grounds upon which to challenge for cause.—Gray v. State, 55 Ala. 86. Nor would the rule be otherwise, even if such disqualification was hnoion to the sheriff at the time he summoned them, unless it appears from the record that, without them, there was not a sufficient number of good and lawful men, from whom an impartial jury could be selected.—Commander v. State, 60 Ala. 1.
The motion to quash the venire should', however, have been sustained, very clearly, upon another ground specified in the record. The list of special jui'ors, ordered by the court to bé summoned, contained the names' of only ninety-nine, instead of. one hundred persons, the name of the same person appearing tioice in the list. The prisoner was on trial for a capital felony, and in actual confinement. He was, therefore, entitled, as matter of right, to the benefit of those statutory provisions which are designed as safeguards to the security of a fair and impartial jury trial, such as the constitution intends to guarantee. The statute is mandatory, that in the trial of capital offenses, “ the court must make an order, commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those summoned on the regular juries of the week, or term when the term does not exceed one week.”—Code 1876, § 4874. This order was made by the court, and the number was fixed at one hundred, as a proper number of persons to constitute the special venire in this case. So long as this order remained unrevoked, the prisoner had the lawful right to insist that the venire should be constituted in accordance with such judicial direction. To have summoned ninety-nine persons, was just as much a violation of this order, as to have summoned fifty-nine, the difference being in degree only, and- not in the matter of spirit or substance. So, likewise, the statute is mandatory, and not directory merely, that in [523]*523such cases, “ a copy of tbe indictment, and a list of the jurors summoned for Ms trial, including tbe regular jury, must be delivered to him [tbe prisoner] at least one entire day before tbe day appointed for bis trial.”—Code 1876, § 4872. Tbis list should have been one constituted in accordance with tbe mandate of tbe court. It should have contained tbe names of one hundred persons, and not of any less number. This was very important to tbe prisoner, as affording him “ tbe opportunity of ascertaining whether causes for challenge existed ; and, also, for tbe purpose of enabling him to exercise, understanding^, the privileges conferred upon him as to peremptory challenges.”—Parsons v. The State, 22 Ala. 50. The above statutes have ¡beemconstrued by tbis court not to be directory merely, but as conferring benefits which are matters of right; and a failure to comply with them, if not waived.by the defendant in the court below, constitutes such error as to authorize the reversal of a judgment of conviction on appeal to this court.—Williams v. State, 48 Ala. 85; Nutt v. State, 62 Ala. 180; Bell v. State, 59 Ala. 55; Parsons v. State, supra.
The above defect is not cured by the influence of section 4876 of the Code, which provides that “ a mistake in the name of any person summoned as a juror for the trial of a capital offense, either in the venire, or in the list of jurors delivered to the defendant, is not sufficient cause to quash the venire, or to delay or continue the trial, unless the court, in its discretion, is of opinion that the ends of justice so require.” When there is a mere mistake in the name, by reason of erroneous orthography, or otherwise, the names of such persons may be discarded, and others summoned to supply their places. But the error in this case is not a mere mistake in the name of one summoned as a juror ; it is a failure of the sheriff to comply with a judicial order made for the organization of a legal jury.—Hall v. State, 51 Ala. 9; Floyd v. State, 55 Ala. 61; Rash v. State, 61 Ala. 89.
Our conclusion is, that the court erred in not sustaining the motion to quash, so as to have ordered a venire de novo.
We think the rule is settled by the decisions of this court, as well as by the principles of criminal procedure at com*. mon law, being applicable alike to misdemeanors and felonies, that, where a juror is disqualified to serve, and such disqualification was not known at the time of his acceptance, or. was concealed, without lack of diligence to discover it on the part of the objector, he may be challenged for cause at any time before he is sworn. There was, for this reason, no error in permitting the State’s solicitor to challenge Seymore, as his disqualification was not disclosed on his voir dire, but [524]*524only while in the act of taking the required oath. The qualification attempted to be affixed to the oath was tantamount to a refusal to take it. Hence, he had not been sworn when challenged.—1 Bish. Cr. Proc. § 932; State v. Croome, 10 Iowa, 308; Smith v. State, 55 Ala. 1; Sparks v. State, 59 Ala. 82; Spigener’s case, 62 Ala. 383, 387. The rule is different, however, after a juror has not only been accepted, but has been sworn (Rash v. State, 61 Ala. 90); unless he has been excused or challenged by consent, or the cause be one that has originated since he was sworn.—Hawkins P. C. 568.
The oath administered to the jury in this case was, “to well and truly try the issue joined between the State and the prisoner.” It is insisted that this was not a substantial compliance with the statute, because it omits the sentence, “ and a true verdict render according to the evidence, so help you God.”—Code, § 4765. It is unnecessary to decide the point, which, in effect, is differently decided in the case of Edwards v. State, 49 Ala. 334, and that of Gardner v. State, 48 Ala. 263. The conflicting authorities are sought to be reconciled in Mitchell’s case, 58 Ala. 417, where the true construction of the statute is probably stated by Mr. Justice MANNING. We dismiss this particular subject, with the observation, that it is sufficient, if the entry shows, simply, that the jury was “ duly sworn,” or was “ sworn according to law;” and this is the safer practice, as being more likely to avoid a technical error, the commission of which has brought to this court a multiplicity of cases, and has thereby greatly delayed the speedy administration of justice.—Mitchell’s case, supra.
We can not see that the court erred, in excluding the question propounded at the instance of the accused, asking “ luhat business Eankin ” [the deceased] “ had been engaged in ?” The question was not answered, nor was it stated what was proposed to be proved in response to it. It was too general, moreover, to authorize us to infer that the answer, if allowed to be made, would have been either relevant, material, or beneficial to the defendant.—Stewart v. State, 63 Ala. 199; Man. Co. v. Gibson, 62 Ala. 369; Hirschfelder v. Mitchell, 54 Ala. 419; Burns v. State, 49 Ala. 371.
There was no error in the other rulings of the court on the evidence. The questions proposed to the witness Slaughter were either leading, or sought to elicit mere opinions of the witness; or else to introduce the defendant’s own declarations, in exculpation of his conduct, which could not be done, unless they constituted a part of the res gestae.—Billingslea’s case, at present term; Stewart v. State, 63 Ala. 199; [525]*525Burns’ case, 49 Ala. 370; Wharton’s Cr. Ev. § 457; Gassenheimer’s case, 52 Ala. 314.
The testimony of the deceased toitness, Locklin, taken on the preliminary investigation before the magistrate, was clearly admissible on the trial in the Circuit Court, it was reduced to writing at the time the witness deposed, and, though not signed by him, was proved by the magistrate himself to have been correctly taken, under the direction of the witness, and in his words. Locklin being dead, it was competent to introduce any witness who heard his statements before the committing magistrate, for the purpose of proving them.—Wharton’s Cr. Ev. 227; Horton v. State, 53 Ala. 489; Marler v. State, at the last term; Davis v. State, 17 Ala. 354.
The charge given by the court was a correct exposition of the law.—Roberts v. State, at the last term; Whart. Cr. Ev. § 757.
For the refusal of the court to sustain the motion, made by the prisoner, to quash the venire, as above stated, the judgment of conviction in this cause must be reversed, which is accordingly hereby done, and the cause is remanded for further proceedings. The prisoner will, in the meanwhile, be retained in custody, until discharged by due course of law.