BRICKELL, C. J. —
1. The only question presented by the demurrer to the indictment is the constitutionality of the act, approved March 18, 1875 (Pamph. Acts 1874-5, p. 280), entitled “ An act to render more explicit and to provide for the better enforcement of the provisions of law, in reference to the sale or giving away of spirituous, vinous, or malt liquors in this State.” This question was fully considered in Adler v. State, at the present term, and the constitutionality of the act affirmed.
2. Indictments for misdemeanors, or for felonies which may not be punished capitally, are triable by the regular jurors summoned for the week, or for the term, if the term does not exceed one week. These jurors are organized by the court, on the day to which they are summoned, into separate pannels, and numbered jury one and two. They are sworn generally; not for the trial of a particular issue, but well and truly to try all issues, and execute all writs of inquiry, which may be submitted to them, and true verdicts to render according to the evidence. When a cause is called for trial, it is in the discretion of the court to cause either pannel to take the box; and the pannel called, on taking their seats, are subject to challenges. If the indictment is for a felony which may be punished capitally, special jurors are summoned, including the regular juries. From the special jurors summoned a jury is drawn and selected. As the name of each person so summoned is drawn, though he may be of the regular juries, he is examined by the court touching his qualifications, and to ascertain if he is subject to challenge for cause. If on such examination he is found of the requisite [7]*7qualifications, and not subject to challenge 'for cause, be is put first on tbe State, and tben on tbe defendant; and if accepted by eacb, be is sworn for tbe trial of tbe issue in tbe particular case. After having been accepted and sworn, be cannot, without tbe consent of tbe prisoner, be set aside, or challenged, for any cause existing at tbe time be was sworn, although such cause was not discovered until after he bad been accepted and sworn.' — State v. Williams, 3 Stew. 454; State v. Morea, 2 Ala. 275; Stalls v. State, 28 Ala. 25; McFadden v. Commonwealth, 23 Penn. 12.
This rule cannot be applied to indictments for misdemeanors, or for felonies not capital, except as to talesmen; because tbe regular jurors of tbe week, or term, are not sworn for tbe trial of tbe particular case, but generally — for the trial of all issues which may be submitted to them; and tbe oath is administered before tbe State or tbe defendant has tbe opportunity of interposing a challenge. As to these jurors, tbe right of challenge for cause exists, until, by some positive act, tbe juror is selected by tbe State and tbe defendant. Tbe mere calling of tbe juror to tbe bar, by tbe order of tbe court, and tbe challenge of other jurors called at tbe same time, without tbe acceptance or challenge of tbe •particular juror — mere silence in regard to him — tbe parties not having been required to elect or reject him, is not an absolute waiver of tbe right to challenge, if good cause be sub-quently shown, and it is apparent such cause was not sooner discovered, or was not improperly withheld. Talesmen, when summoned and drawn to supply deficiencies in such juries, are put on tbe State and tbe defendant, for acceptance and rejection, as they are drawn, and are not sworn until after their acceptance; or, if tbe right of peremptory challenge has been exhausted, until an opportunity is afforded, for challenge for cause. Tbe. challenge of talesmen, for existing cause, must precede tbe administration of tbe oath. After tbe ceremony of tbe administration of tbe oath is commenced, tbe right of challenge for existing cause is lost, alike to tbe State and to tbe defendant.
In Stalls v. State (25 Ala. 25), it was held, that the State lost tbe right of challenge for cause, if tbe talesman bad been accepted, though tbe cause of challenge was discovered after acceptance, and interposed before be was sworn. We are not inclined to follow this ruling. If the court is satisfied that tbe cause of challenge was discovered after tbe acceptance of tbe juror, and before be is sworn — that it has not been withheld from mere caprice, or from some improper motive, tbe challenge should not be disallowed. Tbe right of tbe State, and of tbe. defendant, is to a fair trial, by an [8]*8honest, impartial, intelligent jury. The defendant does not acquire a right, by the acceptance of a juror who is subject to challenge for cause, to be tried by him. The State does not lose the right to interpose the challenge, so long as the juror is not sworn. Until then, the matter of his selection and qualification is not complete. It is the administration of the oath which qualifies him, and frees Mm from challenge for cause, by the State, or by the defendant. It does not distinctly appear from the bill of exceptions that the State, or the defendant, when the court allowed the first challenge for cause, had passed upon- and accepted the jurors challenged. In reference to the jurors subsequently challenged, it does not appear whether they were of the regular jury, or of the talesmen. If they were of the talesmen, the challenge was not too late. If of the regular jurors, whether the challenge was in time, depends upon whether the State and the defendant had previously elected them by any positive act.
3. The statute declares that, on trials for offenses which may be punished capitally, or by imprisonment in the penitentiary, it is ground of challenge for cause by the State, that a juror is of the opinion a conviction should not be had on circumstantial evidence. — E. C. § 4182. The purpose of this, and of all the statutes in reference to juries and jurors, is to secure to the State, and to the accused, a trial by an honest, impartial, intelligent jury of resident citizens. The enumeration of particular grounds of challenge was not intended to exclude others, which affect the integrity, or the indifference, or the intelligence of the juror, and which, if disallowed, would disappoint the objects of a trial by jury.— State v. Marshall, 8 Ala. 302. The law commands a conviction for a misdemeanor, or a felony, on circumstantial evidence, if the circumstances are so strong and conclusive as to exclude any other reasonable hypothesis than that of the guilt of the accused. If would be singular, if such evidence was to be addressed to a juror, whose opinions were formed and fixed against its sufficiency, before its introduction, and before he was instructed as to the legal rules by which its sufficiency was to be tested. There are misdemeanors, in which knowledge of a particular fact is an indispensable element of the offense. The proof of knowledge, in such cases, is most often dependent on circumstantial evidence. The knowledge is to be inferred from facts, or circumstances, which may be proved. In the present case, the State was bound to prove that the person to whom the defendant had sold or given spirituous liquor was of intemperate habits, and that the defendant Imew it. There was not, and but sel-[9]*9dom can there be, direct proof of such knowledge.. The frequency and.
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BRICKELL, C. J. —
1. The only question presented by the demurrer to the indictment is the constitutionality of the act, approved March 18, 1875 (Pamph. Acts 1874-5, p. 280), entitled “ An act to render more explicit and to provide for the better enforcement of the provisions of law, in reference to the sale or giving away of spirituous, vinous, or malt liquors in this State.” This question was fully considered in Adler v. State, at the present term, and the constitutionality of the act affirmed.
2. Indictments for misdemeanors, or for felonies which may not be punished capitally, are triable by the regular jurors summoned for the week, or for the term, if the term does not exceed one week. These jurors are organized by the court, on the day to which they are summoned, into separate pannels, and numbered jury one and two. They are sworn generally; not for the trial of a particular issue, but well and truly to try all issues, and execute all writs of inquiry, which may be submitted to them, and true verdicts to render according to the evidence. When a cause is called for trial, it is in the discretion of the court to cause either pannel to take the box; and the pannel called, on taking their seats, are subject to challenges. If the indictment is for a felony which may be punished capitally, special jurors are summoned, including the regular juries. From the special jurors summoned a jury is drawn and selected. As the name of each person so summoned is drawn, though he may be of the regular juries, he is examined by the court touching his qualifications, and to ascertain if he is subject to challenge for cause. If on such examination he is found of the requisite [7]*7qualifications, and not subject to challenge 'for cause, be is put first on tbe State, and tben on tbe defendant; and if accepted by eacb, be is sworn for tbe trial of tbe issue in tbe particular case. After having been accepted and sworn, be cannot, without tbe consent of tbe prisoner, be set aside, or challenged, for any cause existing at tbe time be was sworn, although such cause was not discovered until after he bad been accepted and sworn.' — State v. Williams, 3 Stew. 454; State v. Morea, 2 Ala. 275; Stalls v. State, 28 Ala. 25; McFadden v. Commonwealth, 23 Penn. 12.
This rule cannot be applied to indictments for misdemeanors, or for felonies not capital, except as to talesmen; because tbe regular jurors of tbe week, or term, are not sworn for tbe trial of tbe particular case, but generally — for the trial of all issues which may be submitted to them; and tbe oath is administered before tbe State or tbe defendant has tbe opportunity of interposing a challenge. As to these jurors, tbe right of challenge for cause exists, until, by some positive act, tbe juror is selected by tbe State and tbe defendant. Tbe mere calling of tbe juror to tbe bar, by tbe order of tbe court, and tbe challenge of other jurors called at tbe same time, without tbe acceptance or challenge of tbe •particular juror — mere silence in regard to him — tbe parties not having been required to elect or reject him, is not an absolute waiver of tbe right to challenge, if good cause be sub-quently shown, and it is apparent such cause was not sooner discovered, or was not improperly withheld. Talesmen, when summoned and drawn to supply deficiencies in such juries, are put on tbe State and tbe defendant, for acceptance and rejection, as they are drawn, and are not sworn until after their acceptance; or, if tbe right of peremptory challenge has been exhausted, until an opportunity is afforded, for challenge for cause. Tbe. challenge of talesmen, for existing cause, must precede tbe administration of tbe oath. After tbe ceremony of tbe administration of tbe oath is commenced, tbe right of challenge for existing cause is lost, alike to tbe State and to tbe defendant.
In Stalls v. State (25 Ala. 25), it was held, that the State lost tbe right of challenge for cause, if tbe talesman bad been accepted, though tbe cause of challenge was discovered after acceptance, and interposed before be was sworn. We are not inclined to follow this ruling. If the court is satisfied that tbe cause of challenge was discovered after tbe acceptance of tbe juror, and before be is sworn — that it has not been withheld from mere caprice, or from some improper motive, tbe challenge should not be disallowed. Tbe right of tbe State, and of tbe. defendant, is to a fair trial, by an [8]*8honest, impartial, intelligent jury. The defendant does not acquire a right, by the acceptance of a juror who is subject to challenge for cause, to be tried by him. The State does not lose the right to interpose the challenge, so long as the juror is not sworn. Until then, the matter of his selection and qualification is not complete. It is the administration of the oath which qualifies him, and frees Mm from challenge for cause, by the State, or by the defendant. It does not distinctly appear from the bill of exceptions that the State, or the defendant, when the court allowed the first challenge for cause, had passed upon- and accepted the jurors challenged. In reference to the jurors subsequently challenged, it does not appear whether they were of the regular jury, or of the talesmen. If they were of the talesmen, the challenge was not too late. If of the regular jurors, whether the challenge was in time, depends upon whether the State and the defendant had previously elected them by any positive act.
3. The statute declares that, on trials for offenses which may be punished capitally, or by imprisonment in the penitentiary, it is ground of challenge for cause by the State, that a juror is of the opinion a conviction should not be had on circumstantial evidence. — E. C. § 4182. The purpose of this, and of all the statutes in reference to juries and jurors, is to secure to the State, and to the accused, a trial by an honest, impartial, intelligent jury of resident citizens. The enumeration of particular grounds of challenge was not intended to exclude others, which affect the integrity, or the indifference, or the intelligence of the juror, and which, if disallowed, would disappoint the objects of a trial by jury.— State v. Marshall, 8 Ala. 302. The law commands a conviction for a misdemeanor, or a felony, on circumstantial evidence, if the circumstances are so strong and conclusive as to exclude any other reasonable hypothesis than that of the guilt of the accused. If would be singular, if such evidence was to be addressed to a juror, whose opinions were formed and fixed against its sufficiency, before its introduction, and before he was instructed as to the legal rules by which its sufficiency was to be tested. There are misdemeanors, in which knowledge of a particular fact is an indispensable element of the offense. The proof of knowledge, in such cases, is most often dependent on circumstantial evidence. The knowledge is to be inferred from facts, or circumstances, which may be proved. In the present case, the State was bound to prove that the person to whom the defendant had sold or given spirituous liquor was of intemperate habits, and that the defendant Imew it. There was not, and but sel-[9]*9dom can there be, direct proof of such knowledge.. The frequency and. publicity of bis intoxication, in the immediate vicinity of the defendant’s residence and place of business, and the knowledge of bis habits in the community, and by those not more intimate in intercourse with Mm than the defendant, were circumstances from which the jury were authorized to infer that the defendant had knowledge of such habits. The administration of justice would merit, and soon sink into contempt, if a juror was called as the final trier of the evidence, who, however honestly, had formed an opinion upon, and prejudged its sufficiency. It is good ground of challenge for cause by the State, in any case, whether of felony or misdemeanor, that the juror holds to such an opinion of the law, that he cannot, or will not, convict on circumstantial evidence, however strong it may be. — 1 Bish. Or. Pr. § 916.
4. The law, common and statutory, is careful to exclude from the jury-box a juror who has, in any degree, prejudged the issue he is to try; or who is under any bias, or want of impartiality, which would prevent him from hearing, trying, and determining fairly. The juror who has a fixed opinion as to the guilt or innocence of the accused, which would bias his verdict, is excluded by statute. The grand juror, who has indicted the accused, is excluded by the common law, though he hears only the evidence for the State.. — Birdsong v. State, 47 Ala. 68. Or, if there has been a mistrial, no member of the jury failing to agree is competent as a juror on the second trial. — 1 Bishop’s Cr. Pr. § 913. There seems to have been a trial of another defendant, for an offense identical with the offense charged in the present indictment— the giving or selling spirituous liquor to John JET. Wilson, a man of hnovm intemperate habits. The gist of the offense, in each indictment, was the character of the person to whom the liquor was sold or given, and the knowledge by the defendant of such character. The controverted facts, on the trial of the present indictment, Avere, the character of Wilson’s habits, and the defendant’s knowledge of that character. The fact of sale of the liquor was clearly shown, and there was no conflict of evidence on that point. If the controversy, on the former trial, was confined to these facts, it is apparent the jurors on that trial were not impartial. They had formed and expressed an opinion, which, of necessity, would bias their verdict. The issues in the two causes, and the evidence to prove or disprove them, are so identical that we think the court was justified in assuming the jurors on the first trial were disqualified. If a juror had announced to the court, that he had formed and expressed an opinion [10]*10that Wilson was, or was not, of intemperate habits, it would have been the duty of the court, at any time before he was sworn, or before he was accepted by the defendant and the State, if it was not necessary to swear him in the particular case, without waiting a challenge for cause, to exclude him from the jury. The impartiality of the jury-box, the purity of the administration of justice,' would require it. Upon Wilson’s habits, the jurors excluded had passed; and having-passed upon them, they had already adjudged one of the most material issues, or facts in issue, involved in the trial of the present indictment. They were as incompetent as if they had been jurors on a former mistrial. — 1 Bish. Or. Pr. §§ 912-13.
The cases of Boggs v. State (45 Ala. 30), and Lyman v. State (lb. 72), are in conflict with the views we have expressed, and are in conflict with the case of State v. Marshall, 8 Ala. 302. The error of the decision, in these cases, lies in the supposition, that there are no causes for the exclusion of jurors, except such as are enumerated as challenges for cause in the statute. The incorrectness of that supposition is shown in the subsequent case of Birdsong v. State (47 Ala. 68), in which it was held, that a grand juror was not a competent petit juror, on the trial of an indictment found by the jury of which he was a member. The true rule, we think, is that expressed in State v. Marshall. And we cannot doubt it is the duty of the court, when it shall appear satisfactorily that any person called as a juror has not the requisite qualifications of integrity, impartiality, or intelligence, at any time before he has been elected by the State and the defendant, to reject him. The State certainly has no interest, and the defendant has no right, to introduce into the jury-box unfit persons. It is the duty of the court to guard against their introduction.
5. When, on a trial for a misdemeanor, or a felony which may not be punished capitally, vacancies in á petit jury are caused by challenges, or by the rejection or discharge of jurors by the court, it is within the discretion of the court to direct such vacancies to be supplied, either by calling jurors from the regular pannels in attendance, or by summoning talesmen from the bystanders, or from the county at large.— R. C. §§ 4090-91; Wilson v. State, 31 Ala. 371.
6. In Stanley & Elliott v. State (26 Ala. 26), it was held competent for a witness to state that a person was of known intemperate habits. The general rule is, that the opinions of a witness, as to the existence of a fact, or his inferences or conclusions from facts, are not evidence. In the case referred to, the court say: “ The question as to the intemper[11]*11ate habits is purely one of fact; and it can make no difference in principle, that being the case, that the matter in relation to which the witness is required to speak is made up of more than one fact.” The only authority cited by the court is Massey v. Walker (10 Ala. 288), in which it was held that “ a witness was properly permitted to testify that another, at a particular time, was ‘largely embarrassed by debt.’ ” • If a witness should testify to such a state of facts as clearly and satisfactorily proves that his acquaintance with-a particular person was of such character that he must know his habits, and must Know whether he was given to the immoderate use of intoxicating liquors; if he should show, by the facts stated, these habits, as they fell within his observation, it may be proper to permit him to state, in connection with the facts, that the person was of intemperate habits; as it would be proper for him, after having stated his opportunities or ability to testify in reference to the particular fact, to state that the same person was sane or insane. — Norris v. State, 16 Ala. 776; Florey v. Florey, 24 Ala. 241; Powell v. State, 25 Ala. 21; Stuckey v. Bellah, 41 Ala. 700. But it cannot be permissible for him to state that these facts were knoion. ' Then he testifies to the inference which the jury must draw from all the evidence — he is. substituted to their place, and the conclusion, which is the result of the exercise of their judg-meat on all the evidence, would be reduced to a fact which the witness would prove. We cannot concur in the opinion expressed in Stanley & Elliott v. State, supra.
7. The use of intoxicating liquors to drunkenness, or to an obvious change, mentally or physically, or both, from the natural condition of sobriety, is an acquired habit. The frequent repetition of the use, producing the change, renders the man of intemperate habits. When the facts are before the jury, they will not fail to determine whether the habit is, or is not, imputable to the particular person. The fact is determinable, as the fact of habit would be determinable in reference to any other matter. Is there a frequent repetition of the immoderate use of intoxicating liquors ? If the opportunity is present, will there be, judging from past conduct, a repetition of such excessive use ? If so, and there is knowledge of the past conduct, the law commands all to abstain from selling or giving to him vinous, spirituous, or malt liquors.
8. It may be that Wilson was “ of intemperate habits ;” but, if these habits were unknown to the defendant, the offense with which he is charged was not committed. If the defendant had good reason to believe that such were Wilson’s habits, the existence of the reason is a fact, or circum[12]*12stance, from which the jury may infer the guilty knowledge. The inference, or presumption, to be drawn from the fact, lies within the province of the jury — it is not a presumption of law. — 1 Green. Ev. § 44. There are many cases in which knowledge of the particular facts is essential; as on an indictment for uttering a forged instrument, knowledge of its false character on the part of the ntterer must be shown. That he had good reason to believe such was its character, is a fact or circumstance which may be shown to the jury in proof of' knowledge, but it is not conclusive — it is simpíy a fact, on which the jury may found the presumption of knowledge. ■ So, on an accusation of receiving stolen goods, circumstances may be shown which may lead to the conclusion that the defendant had good reason to believe the goods were stolen. These circumstances are admissible in evidence, and on them the jury may found the presumption of guilty knowledge. Whether the presumption shall be drawn from them, lies within the province of the jury. In instructing the jury that the defendant was guilty, if he had good reason to believe Wilson was of intemperate habits, the court invaded the province of the jury. It was assuming that the presumption from the fact was matter of law, and not of fact, to be drawn by the jury.
9. In Stallings v. State, 33 Ala. 425, overruling Stanley & Elliott v. State, 26 Ala. 26, it was held that the notoriety of the intemperate habits of the person to whom the liquor was sold, in the neighborhood in which the defendant resided, is a fact proper to be submitted to the jury, for their consideration in determining whether the defendant had knowledge of such habits. If, from the fact of notoriety, the jury should draw the inference of knowledge, it would be an inference of fact. Whether the inference is just and legitimate, it is the province of the jury to determine. The charge given at the instance of the solicitor is so expressed that the jury were probably, we may say certainly, impressed with the conviction that they were liound to infer the guilty knowledge from the fact of notoriety; and thus invaded their province. Whether the inference of knowledge should be drawn, depends on the degree of notoriety, the opportunity of the defendant to acquire knowledge of it, and his opportunities to observe or to be informed of the habits of the person. The jury must be left free to pronounce, from all the evidence, whether they are satisfied the defendant had the knowledge which renders his act criminal.
For the errors noticed, the judgment must be reversed, and the cause remanded. The defendant will remain in custody, until discharged by due course of law.